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McNeilly v. State

Decided: December 24, 1937.

JAMES MCNEILLY, PROSECUTOR,
v.
STATE OF NEW JERSEY AND ROBERT V. KINKEAD, JUDGE OF THE HUDSON COUNTY COURT OF COMMON PLEAS, RESPONDENTS



On certiorari. Prosecutor was convicted in the First Criminal Court of Jersey City, as a disorderly person, because he could not give a good account of himself, and because he was in this state for an unlawful purpose. He was sentenced and committed to the Hudson county penitentiary for one year. On appeal the Hudson County Court of Common Pleas affirmed the conviction. The Supreme Court allowed a writ of certiorari.

For the prosecutor, John G. Flanigan.

For the respondent, James A. Hamill, Charles Hershenstein (Edward J. O'Mara, of counsel).

Before Justices Bodine, Heher and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The propriety of prosecutor's conviction as a disorderly person rests basically upon our determination of

the assault made upon the constitutionality of our act concerning disorderly persons (Revision of 1898) as lastly amended by chapter 166, Pamph. L. 1936, p. 400.

As so amended section 1, subdivision (a) thereof, now provides as follows:

"Any person who shall be apprehended either on foot or in any automobile, vehicle or public conveyance, who cannot give a good account of himself or who is engaged in an illegal occupation, and who is in this State for an unlawful purpose, shall be deemed and adjudged to be a disorderly person.

"In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation shall be prima facie evidence that he is present in this State for an unlawful purpose."

The judgment of conviction discloses that after midnight on June 29th, 1937, two detectives of Jersey City, while on duty, observed prosecutor walking on "Central avenue in the vicinity of Griffith street;" "he was looking into windows at the time * * *;" and "seemed wandering aimlessly * * *;" he continued to walk on Central avenue as far as South street; he returned slowly to Griffith street where he "stood on the corner and looked up and down." The detectives had observed prosecutor's actions for "about forty minutes." They stopped prosecutor and questioned him. Prosecutor explained his presence in Jersey City by saying that he was a resident of Hoboken, New Jersey; that he was in that particular vicinity because he had been to a dance and had met a girl who lived in the neighborhood but he neither knew her name nor her address. The detectives observed that prosecutor carried or wore but one glove; it was for his right hand; he had none on the left hand; stones were found in his pocket. When asked to explain, prosecutor said that the ...


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