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Sharkey v. Wilkinson

Decided: August 2, 1945.

JAMES A. SHARKEY, PROSECUTOR,
v.
GEORGE W. T. WILKINSON, DEFENDANT



On rule to show cause why writ of certiorari should not issue.

For the prosecutor, Albert B. Melnick.

For the defendant, Gene R. Mariano.

Before Justice Donges.

Donges

DONGES, J. Prosecutor was convicted on December 8th, 1944, of driving an automobile while under the influence of intoxicating liquor in violation of R.S. 39:4-50 and now seeks a writ of certiorari to review such conviction.

Respondent urges that the writ should not issue because prosecutor was guilty of laches in applying for the writ. The rule to show cause was allowed on March 19th, 1945, something over three months after the conviction. It is not pointed out in what regard the respondent was prejudiced by this lapse of time, or that the lapse of time in any way altered the position of the parties.

The allowance of the writ is a matter of discretion, and in the absence of any showing that the respondent was prejudiced the time that elapsed between the conviction and the application for the writ cannot be said to be unduly long.

It is my conclusion that the writ should issue and it is accordingly allowed. Counsel stipulated that if it was determined that the certiorari should issue that I should proceed to determine the case upon its merits.

From the depositions taken upon the rule to show cause why a writ of certiorari should not issue, which are now presented for determination of the case upon the merits, it appears that prosecutor, with his father and mother and another female occupant of prosecutor's automobile, were proceeding on the Gibbsboro-Haddonfield Road in Camden County, when some mechanical difficulty arose and caused the automobile to stop. After some difficulty with one Michael J. Mongo, who alleged his vehicle was damaged by the act of the prosecutor in causing a car ahead of Mongo to stop suddenly, prosecutor's car was driven to Pennsauken Township by one Devlin. Mongo went to the Pennsauken police station and made complaint against Sharkey of driving his automobile while under the influence of intoxicating liquor and Sharkey was picked up

and taken to the police station. A state trooper, Stuebing, arrested the prosecutor. This was about ten minutes after nine in the morning, according to the testimony of Stuebing and other witnesses. Thereupon a physician was summoned and, somewhere from 9:30 to 10 o'clock prosecutor was examined by said physician who reported that he was under the influence of liquor and unfit to drive an automobile. Thereupon, Stuebing sought the township recorder, but was unable to locate him, whereupon he took the prosecutor and his father and mother to Magnolia, where he located the respondent, a justice of the peace; before whom he made complaint against prosecutor, who was immediately put on trial. This trial, according to the testimony, occurred about 11 o'clock in the morning, or approximately one hour or an hour and a quarter after the physician's examination.

It appears that prosecutor pleaded "not guilty," according to the depositions, and the hearing began. Two witnesses were sworn, namely Mongo, who procured prosecutor's arrest, and Devlin, the boy who drove the Sharkeys to Pennsauken. The physician was not present at the hearing but his certificate was admitted in evidence. This was clearly improper. Kruttschnitt v. Hagaman, 128 N.J.L. 246. No witnesses were offered by prosecutor, nor was there any cross-examination. The justice of the peace found prosecutor guilty as charged, and imposed a penalty of $200, and costs of $23.50 and committed prosecutor to the Camden County jail until the penalty and costs were paid. Stuebing thereupon took prosecutor to the county jail, where he was detained until his parents deposited the required sum.

Prosecutor raises a number of objections, but I deem it necessary to deal with only one, namely, whether prosecutor was accorded a fair and adequate trial. From the uncontradicted testimony I conclude that ...


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