For the prosecutor, Levitan & Levitan (Abraham Levitan, of counsel).
For the respondent, Charles A. Rooney (John F. Lynch, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The basic question requiring decision is whether prosecutor's conviction as a disorderly person was proper.
Prosecutor Carroll challenges the propriety of the judgment of his conviction as a disorderly person entered against him, in the First Criminal Court of Jersey City, on a complaint which charged that on June 25th, 1942, he was apprehended at Princeton and Gates Avenues, in Jersey City, that he "could not give a good account of himself," and that he was "in this state for an unlawful purpose." N.J.S.A. 2:202-16. He was committed to the penitentiary of the County of Hudson for a period of one year. N.J.S.A. 2:205-1.
Three others (Dominick Warn, August Latzo and Joseph Sabo) were likewise charged, convicted and punished. Each was allowed a writ of certiorari to review his conviction. On the representation that the four writs were based upon the "identical facts and law," a justice of this court, with the consent of counsel for the respective parties, ordered that the four cases be "consolidated," that they be "argued together" upon the record submitted in the Carroll case, and that the decision in the Carroll case be "dispositive" of the issues of "law and facts" in the other three cases.
From the record thus submitted it is clear that the proofs are not in dispute. While ours is not the duty, in a case of this type, to "weigh the evidence," even if it be in dispute (Cf. State v. Rowe, 116 N.J.L. 48, 57, 58; 181 A. 706; affirmed, 122 N.J.L. 466; 5 A.2d 697), nor to "resolve factual disputes," if there be any "legal evidence to sustain them" (Cf. State v. Czarnicki, 124 N.J.L. 43, 46, 47; 10 A.2d 461), nonetheless, we shall make brief reference to the undisputed facts as exhibited to the end of disposing the frivolous argument made, namely, that the proofs neither support the complaint nor the conviction. The proofs are in substance as follows:
On the morning of the day in question (June 25th, 1942), the police of Jersey City, at the Fifth Precinct Station, received a telephone call "that there was a group of four or five suspicious men at a saloon at Gates and Princeton Avenues." Because of this information, because "there had previously been a hold-up at a saloon in that neighborhood," and because the day in question was a pay day for the Pennsylvania Railroad, several officers "immediately" went to the scene and found a group of men of whom prosecutor was one. Prosecutor was stopped as he came out of the saloon. On questioning he stated that he was a resident of New Brunswick, in this state; that he had come to Jersey City "to see a man * * * about a job for a friend." In answer to a question as to whether he had ever been convicted, he said that "he had been on parole for a charge of death by auto * * *" and that he had previously "been arrested as a disorderly person in New Brunswick." Carroll subsequently
admitted that his answers were not true and that he had actually come to Jersey City to get into a "crap game;" that he had been in the rear of the stated saloon a few days before and "saw a crap game in which a fellow had won $800;" that he "had won it easily," so "he told his friends about it" and that "then all decided to break into the game and get some easy money." Prosecutor's criminal record, verified by himself, contained at least twelve encounters with the law for the period from 1934 to 1942, including, but not limited to, convictions for malicious mischief, grand larceny, breaking and entering, larceny of automobile, for being drunk and disorderly ...