On error to the Hudson County Court of Quarter Sessions.
For the plaintiff in error, Harold Simandl.
For the state, Frank G. Schlosser, Assistant Prosecutor of the Pleas (Daniel T. O'Regan, Prosecutor, and Raymond G. Otis, Assistant Prosecutor, on the brief).
Before Brogan, Chief Justice, and Justices Parker and Porter.
The opinion of the court was delivered by
PARKER, J. This writ of error brings up the conviction of plaintiff in error of maintaining a "disorderly house." The indictment is in the usual common form, substantially that given in Bishop's "Directions and Forms," § 795, and considered in State v. Berman, 120 N.J.L. 381. See, also, 2 Chit. Crim. L. *40.
The matter is before us both on strict writ of error and on certificate of the entire trial record pursuant to R.S. 2:195-16, formerly section 136 of the Criminal Procedure Act, Comp. Stat., p. 1863. The assignments of error and "causes for reversal" are identical and are twenty-seven in number. Of these, the following are not argued and are therefore disregarded: Nos. 1 to 10, inclusive: 16 and 17: and 25.
The first point made for reversal rests on Nos. 18 to 23, inclusive, all relating to passages in the charge. These passages consist of a recital by the court of certain statutory language, and a reading of some of the regulations promulgated by the Commissioner of Alcoholic Beverage Control under the authority of the statute: in connection with which the court pointed out certain testimony tending to show violations of those regulations, and left it to the jury to say whether the evidence satisfied them of the fact of violation. We fail to discern any error here. It is not suggested that the regulations did not have the force of law. Franklin Stores Co. v. Burnett, 120 N.J.L. 596; Gaine v. Burnett, 122 Id. 39. It is argued that there was error in charging that violations of certain specific regulations under the Alcoholic Beverage Control Act might be considered in deciding whether the defendant was guilty under the indictment: but we find that each and every of those violations pointed to conduct falling under the head of "drinking, tippling, whoring and misbehaving themselves" or directly connected therewith, and was entirely competent in that aspect.
The next point, the discussion of which covers over twenty-five pages of the brief for plaintiff in error, relates to the comment by the court on the fact that defendant had not called as witnesses his two bartenders, and instructing the jury on the authority of State v. Callahan, 76 N.J.L. 426 (which the court cited to the jury), that "failure to produce a witness presumptively able to explain the circumstances which constitute a prima facie case against the accused, while not presumptive of guilt, may be considered by the jury against him."
A recital of the testimony supporting the indictment is needless. Suffice it to say that the state presented ample evidence of a "disorderly house" and concededly the defendant was its proprietor. Indeed, there is no assignment of error as permitted by the statute, that the verdict was against the weight of evidence. So, on the authority of the Callahan case, the failure of defendant to call these bartenders, who were of course present while the place was open for business, part or all of the time, "may be considered by the jury in weighing the effect of evidence applicable to the matter in dispute but it does not raise any presumption of guilt or innocence." (We reproduce the language of the syllabus.)
The attack on the quoted sentence of the charge seems to be based, not on its precise language, but on the fact, stipulated in this court, after the writ of error, that the two bartenders were present at the trial, under subpoena by the state, and naturally could have been called as witnesses by the prosecutor: ergo, it is argued, the rule in the Callahan case was inapplicable. But the argument seems to proceed on the theory of a presumption of guilt on the one hand, and of innocence on the other. That presumption was expressly excluded in the Callahan case, and by the trial judge in the case at bar. What the jury were entitled to infer from the state's failure to call these bartenders, if anything, was that they would not testify favorably to the state; and by the same token, from defendant's failure to call them, that they would not testify favorably to him. There was apparently no request for the former instruction, and hence no error in omitting it. As to the instruction that is challenged, it is to be borne in mind that these two men had been servants of defendant in his place of business, and, if he was conducting a disorderly house, conceivably aiders and abettors therein, and themselves liable to prosecution and ...