For the prosecutor, Thomas Brunetto.
For the respondent, David T. Wilentz, attorney-general.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Prosecutor, after being involved in an automobile accident with another automobile operated by one, Albert Zilske, was arrested and charged, in the manner and within the time prescribed by law (sections 25 and 31 of chapter 171, Pamph. L. 1931, p. 347), and was convicted of driving a motor vehicle on July 28th, 1934, on Broad street, a public highway of Bloomfield, New Jersey, while under the influence of intoxicating liquor (subdivision 3 of section 14 of our Motor Vehicle act, chapter 208, Pamph. L. 1921, p. 643, as amended by Pamph. L. 1931, supra). At the hearing proof was offered and admitted, although no reference was made thereto in the complaint, that prosecutor had been convicted of driving a motor vehicle while under the influence of intoxicating liquor on July 18th, 1924. The court upon consideration of all the proofs adjudged the prosecutor guilty of the instant charge and imposed the penalty authorized to be imposed upon second offenders. Pamph. L. 1931, supra. Prosecutor was committed to the Essex county jail for a period of three months and his license to operate a motor vehicle on the highways of this state was permanently revoked. The writ of certiorari in this case, seeks to review the legality of the conviction and sentence thus imposed upon the prosecutor.
Thirteen reasons are assigned for the prosecutor in support of the contention that the conviction and sentence imposed should be set aside. It will serve no useful purpose to re-state them. Suffice it to state that of the thirteen reasons assigned those meriting consideration may be and are grouped under the following subdivisions: (1) jurisdiction; (2) constitutionality of the provision of the act in question; and (3) weight of evidence. They will be considered accordingly.
First: It is stoutly urged that since there was no reference to the conviction of 1924 in the instant complaint, and since "the court tried and convicted him [prosecutor] as a second offender" the court was without jurisdiction in the premises. This is not so. The court had general and particular jurisdiction of the subject-matter; and it had jurisdiction of the person, the prosecutor. There was a hearing on the merits at
which prosecutor was represented by counsel; the latter militantly participated at the hearing; proof was offered by and for the prosecutor. It is, perhaps, sufficient answer, under these circumstances, to say that prosecutor cannot now be heard to complain. State v. Rosenblum, 100 N.J.L. 240; 126 A. 852; affirmed, 102 N.J.L. 125; 130 A. 614; State v. Baker, 102 N.J.L. 349; 133 A. 745; State v. Paerles, 10 N.J. Mis. R. 355; Goodman v. Eggers, 11 Id. 811, 812; State v. Knowles. Id. 913. But, be that as it may, prosecutor's argument is based on false premises. The former conviction had nothing whatever to do with the guilt or innocence of the prosecutor on the instant charge. Nor was he tried on the former charge. The former conviction was relevant, in so far as the law made it so, on the question of punishment only.
It is further argued for the prosecutor that the law is that where by statute, a second offense makes the accused liable to a different and greater punishment, the offense is considered a first offense, unless a former offense of the same kind is alleged in the indictment and proved. Weeks v. State, 101 N.J.L. 15; State v. Garton, 102 Id. 318. The cited cases unquestionably support the law cited. But does it avail prosecutor? Our answer is no. We base that answer on the fact that the decision of the Supreme Court in the Weeks case and the decision of the Court of Errors and Appeals in the Garton case were made in 1925 and 1926, respectively. The legislature, fully cognizant of these decisions, amended the act in 1931 so that the last sentence of subdivision 3 of section 14, now reads as follows: "Any person who has been, in fact, convicted of a previous violation of this section, need not be charged as a second offender in the complaint made against him in order to render him liable to the punishment imposed by this section upon a second offender." The act as thus amended is controlling, unless, as contended, it is unconstitutional.
Second: Is the act of 1931, supra, unconstitutional? It is so argued because it is claimed that it violates paragraph 8 of article I of the state constitution and the sixth amendment of the federal constitution. The basis for this contention
again relates to the failure to set out the prior conviction in the complaint on the instant charge. Especially is it contended that the failure to set out the prior conviction breached the aforesaid provisions of both constitutions, which provide "that the accused in a criminal proceeding shall be informed of the nature and cause of the accusations made against him." We think that there is no substance to this contention.
This is not a criminal prosecution. State v. Rosenblum, supra; State v. Rodgers, 91 N.J.L. 212; 102 A. 433; Latimer v. Wilson, 103 N.J.L. 159; 134 A. 750; State v. Blaine, 104 N.J.L. 325; 140 A. 566. It has been likened to a proceeding in cases of bastardy, desertion, removal of paupers and the like. State v. Rosenblum, supra. It is, however, the settled law that our Motor Vehicle act is a penal statute; it is quasi -criminal in its nature. State Board, &c., v. McCloskey, 87 Id. 470, 476; Watt v. Wallerius, 99 Id. 370, 371. Conceding but not so deciding, that the complaint in a quasi -judicial criminal procedure must, in exactness, measure up to and comply with the exactness of an indictment in a criminal procedure, was the complaint, in the instant case, defective? We do not think so.
True it is that in a summary proceeding on a penal ordinance or statute, nothing will be presumed or intended in favor of the complaint or conviction thereon. Owens v. Camden, 6 N.J. Mis. R. 279; 141 A. 24; Haviland v. Egan, 11 N.J. Mis. R. 799; 168 A. 171; McKenna v. Board of Police and Fire Commissioners, Paterson, 11 N.J. Mis. R. 945; 169 A. 287; Hommel v. Township of East Hanover, 13 N.J. Mis. R. 446; 178 A. 189. But, there is no necessity here to presume or intend anything to sustain the complaint or the conviction thereon The prosecutor was informed that on a day and place certain he was driving a motor vehicle while under the influence of intoxicating liquor. The "nature and cause" of the accusation or complaint were stated with precision and clarity. There could be no doubt of the charge that prosecutor was called upon to meet.
It is, however, argued for the prosecutor that the failure to set out the prior conviction was an ...