For the prosecutor, Strong & Strong (John V. R. Strong, of counsel).
For the respondent, John Macko (Edward Sachar, of counsel).
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. This is a drunken driving case. Prosecutor challenges the propriety of the judgment of conviction entered against him, in the Recorder's Court of the Township of Franklin, Somerset County, upon a complaint which charged that, on June 23d, 1941, at about 9:40 P.M., he operated a motor vehicle, on a public highway (between Middlebush and East Millstone on the Amwell Road), in said township and county, while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50. The recorder imposed a penalty of $200 and $5 costs on prosecutor and, in default of the payment thereof, ordered that prosecutor be committed to the Somerset county jail for a period of sixty days.
Not having the $205 with him and not having been given much, if any, opportunity to get it, prosecutor was, within two hours and twenty minutes after his arrest, that is just before midnight following his arrest, committed to the county jail.
In support of his challenge, prosecutor contends (1) that the record submitted is insufficient; (2) that he was the victim of entrapment; (3) that he was denied the right of counsel; and (4) that he was tried and convicted while not in a condition to comprehend or intelligently to prepare a
defense (not by reason of his alleged intoxication but rather by reason of the strain of the circumstances upon his poor health), and that he was not given a fair trial.
We pass over the contentions we have numbered as 1 and 2, for we choose to base our determination of this cause upon contentions 3 and 4 which we conceive to be embraced within the requirements of due process of law. Thus the questions here, as we see it, are whether the basic requirements of due process were satisfied. Was the prosecutor given timely and reasonable opportunity to be heard and to defend himself? State v. Zied, 116 N.J.L. 234; 183 A. 210. Was he given a fair trial? Cf. Johnson v. City of Wildwood, 116 N.J.L. 462, 464; 184 A. 616. Our answers to these questions are in the negative. In support of these answers, let us refer to the facts.
Prosecutor is a citizen, taxpayer and former official of the Township of Franklin. His sharp criticisms of the present officials of the township engendered ill feeling between them. Having occasion to call at the town hall of the township, he arranged with his counsel to meet him there at 9:30 P.M., on June 23d, 1941. Prosecutor reached the Recorder's Court room in the township hall about 9:20 P.M. His counsel had not then arrived. As soon as prosecutor entered the court room, in which were present the recorder and some police officers, a rather foul and insulting verbal altercation followed between the police officials and prosecutor. Because of this altercation, and because of the claim that prosecutor was under the influence of intoxicating liquor, he was escorted by the police officers to his automobile and seated therein, during which time prosecutor claims he was struck by the officers, and was profanely told to get away. He was not arrested for his conduct or his alleged condition while in the court room because the police officers ...