State v. Stasak

• Decision Date: 17 February 1926
• Docket Number: No. 10.,10.
• Citation: 132 A. 235
• Parties: STATE v. STASAK.
• Court: New Jersey Supreme Court

132 A. 235

STATE

v. STASAK.

No. 10.

Supreme Court of New Jersey.

Feb. 17, 1926.

Error to Court of Quarter Session, Warren County.

George Stasak was convicted of unlawful sale of intoxicating liquor and unlawful possession of intoxicating liquor as a second offense, and he brings error. Affirmed.

Argued October term, 1925, before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.

William A. Stryker, of Washington, N. J., for plaintiff in error.

Sylvester C. Smith, Jr., prosecutor of the pleas, of Phillipsburg, for the State.

PER CURIAM. The plaintiff in error was convicted in the Warren county quarter sessions court on an indictment containing two counts, the first of which charged him with a second offense of unlawful sale of intoxicating liquor, and the second charged him with unlawful possession of intoxicating liquor as a second offense, contrary to section 10 of an act (Laws 1922, c. 255, p. 617) of the Legislature entitled "An act concerning intoxicating liquor used or to be used for beverage purposes."

There was a trial, a verdict, and judgment. The assignments of error relate solely to the refusal of the trial judge to quash the indictment.

A motion to quash an indictment is a motion addressed to the discretion of the court and not ex debito justitise. State v. Hageman, 13 N. J. Law, 314; State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; Proctor v. State, 26 A. 804, 55 N. J. Law, 472; Parks v. State, 43 A. 52, 62 N. J. Law, 664. In order for a defendant to avail himself of a defect in the indictment a motion to quash must be made before the jury is sworn. Mead v. State, 23 A. 264, 53 N. J. Law, 601. It was there held that, if no objection has been made to an indictment before the trial jury is sworn, the indictment cannot be questioned upon a motion in arrest of judgment. In the present case there was a motion to quash the indictment before the trial jury was sworn, but the matter was pursued no farther. There was no motion made in arrest of judgment or for a direction of a verdict upon the ground that the indictment was defective in that it failed to charge a crime. It is firmly settled by the decisions in this state that the motion to quash is one addressed to the discretion of the court, and, therefore, the denial of such a motion, ipso facto furnishes no legal basis for the support of an assignment of error. State v. Pisaniello, 96 A. 89, 88 N. J. Law, 262; State v. Rubin, 103 A. 390, 91 N. J. Law, 368; State v. Rosenberg, 105 A....