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Kluczek v. State

Decided: May 6, 1935.

WATSON J. KLUCZEK, PROSECUTOR,
v.
STATE OF NEW JERSEY, RESPONDENT



On certiorari.

For the prosecutor, William J. McCormack.

For the respondent, Arthur C. Dunn, prosecutor of the pleas, and Michael Shershin, assistant prosecutor.

Before Justices Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. By this certiorari the prosecutor challenges the judgment of conviction, entered in the Passaic County Court of Special Sessions, upon a complaint charging that, on June 23d, 1934, he drove and operated a motor vehicle, on a public highway of the city of Paterson, while under the influence of intoxicating liquors, "in violation of section 14, subdivision 3 of the amended penal laws of 1926, chapter 152, in violation of section 14, subsection 3, of an act * * *."

The complaint was made upon one of the regulation printed forms provided by the motor vehicle department; and an ink line was drawn through the following clause, which, on the printed form, was a continuation of the quoted sentence: "providing for the operation and licensing of motor vehicles in the State of New Jersey, comprising chapter 208, laws of 1921, amended to date, and supplements thereto, amendments therewith affecting the use of motor vehicles." Apparently, the draftsman conceived that the amendment of section 14 of the act, effected by chapter 152 of the laws of 1926 (Pamph. L. 1926, p. 254), was applicable. But this section was again amended by chapter 171 of the laws of 1931. Pamph. L. 1931, pp. 347, 367; N.J. Stat. Serv. 1931, § 135-49 to § 135-82. The only change made by the last amendment was the inclusion of a provision that one convicted of a previous violation of that section need not be charged as a

second offender in the complaint, in order to subject him to the punishment therein provided for a second offender.

The complaint was made in the Recorder's Court of the city of Paterson; and prosecutor was convicted of "driving an automobile while under the influence of intoxicating liquors," in violation of section 14, subdivision 3, of the Motor Vehicle act of 1921 (Pamph. L. 1921, p. 643), and of chapter 152 of the laws of 1926, and the amendments thereof. There was a trial de novo in the Passaic Special Sessions, as provided by chapter 97 of the laws of 1933 (Pamph. L. 1933, p. 200; N.J. Stat. Serv. 1933, § 135-79 (a), (b), (c); and prosecutor was again convicted of violating subdivision 3 of section 14 of the Motor Vehicle act of 1921, "amended by chapters 151 and 152 (Pamph. L. 1926), and the various acts supplementary thereto and amendatory thereof."

The first insistence of prosecutor is that the court below lacked jurisdiction "because the complaint was defective, in that (a) it was not made within the statutory time; and (b) it did not charge the defendant with any violation or with violating any existent law."

The first of these grounds relates to the acquisition of jurisdiction of the person and not of the subject-matter, and is devoid of merit. The complaint was not made until the second day after prosecutor's arrest; and it is insisted that, in virtue of chapter 63 of the laws of 1933 (Pamph. L. 1933, p. 120; N.J. Stat. Serv. 1933, § 135-82), providing for the temporary detention of one charged with a violation of the section in question for a period not to exceed twenty-four hours from the time of his arrest, jurisdiction over the person was not acquired. The point was not made below, either in the Special Sessions or in the Recorder's Court, and is not of a character that merits consideration when raised here for the first time. State v. O'Leary, 110 N.J.L. 36; Latimer v. Wilson, 103 Id. 159; Ryel v. Turkel, 75 Id. 677. Moreover, if ...


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