On appeal from the Supreme Court.
For the appellant, Kenneth J. Dawes.
For the respondent, Erwin E. Marshall, prosecutor of the Pleas of Mercer county, and Augustus V. Gribbin.
The opinion of the court was delivered by
PERSKIE, J. Defendant was arrested on the morning of September 3d, 1935, in Hamilton Township, Mercer county, New Jersey, and charged with operating a motor vehicle "while under the influence of intoxicating liquor" on a public highway in said township, contrary to subdivision 3, section 14, chapter 208, Pamph. L. 1921, p. 643, amended by chapter 171, Pamph. L. 1931, p. 368.
The complaint was made before C. R. Mulford, as "Acting Police recorder [of] Hamilton Township;" a warrant was issued; and on the same day (September 3d, 1935) defendant was adjudged guilty as charged. The complaint attached to the return appears to indicate that defendant "plead guilty." Defendant was sentenced to the county workhouse for ninety days and his driver's license was permanently revoked.
It should perhaps be noted that although the original complaint, warrant and conviction were signed by Mulford in the capacity of acting recorder, nevertheless, the copies of the conviction and commitment filed in the county clerk's office were erroneously signed by him as "Justice of the Peace."
In due season, defendant, pursuant to section 27, Pamph. L. 1931, supra, appealed from the judgment and sentence of the acting recorder. The notice of hearing on the trial of this appeal, addressed to the prosecutor of the Pleas of Mercer county by defendant's attorney, contained this erroneous statement, "I shall move to trial on appeal * * * before the Court of Common Pleas of the County of Mercer." It should have been noticed for trial before the Court of Special Sessions of that county. Pamph. L. 1933, ch. 97, p. 200.
On the day first set for the trial counsel for defendant moved to amend his own notice of trial to read, "in Special Sessions Court;" and also moved that the conviction be set aside and defendant adjudged not guilty. No reason is
made to appear upon which the latter motion was rested. The assistant prosecutor moved to amend the copy of the conviction and commitment filed so that the signature thereto would correspond with the originals, and as amended would read Mulford as acting recorder. The trial judge reserved decision on all motions.
At the adjourned and final day of trial the judge denied the motion to set aside the conviction and to adjudge the defendant not guilty. Thereupon defendant's counsel moved to withdraw his prior motion to amend the notice of hearing, as aforesaid. That motion was denied and the judge ordered that the notice of trial be amended as first requested; he granted the motion to amend the signatures to the conviction and commitment to read Mulford as acting recorder.
The cause proceeded to trial. Each party offered proof; each argued his cause. The trial judge adjudged the defendant guilty; he ordered that defendant be confined in the Mercer county workhouse for ...