For the prosecutor, Michael A. Szadkowski and Solomon & Miller.
For the defendant, Daniel T. O'Regan and Thomas J. Armstrong.
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
DONGES, J. This certiorari brings up for review the conviction of prosecutor for operating a motor vehicle upon a public street in Hudson County while under the influence of intoxicating liquor, in violation of R.S. 39:4-50.
In lieu of depositions, an agreed state of facts was submitted, which, in part, is as follows:
"The prosecutor, Tony Grosky, resides at 174 County Avenue, Secaucus, New Jersey, where he maintains a pig farm.
"On March 20th, 1945, at about nine P.M., said Tony Grosky was driving an automobile on a public highway known as County Avenue, Secaucus, New Jersey, when he struck a parked automobile owned by one Edward J. Gunther, a friend of said Tony Grosky. That he alighted to inspect the damage done to said automobile, and the owner was not then in the automobile.
"That the said Edward J. Gunther pursued Tony Grosky for about three-fourths of a mile, and took him to Patrolman Sarcander of the Hudson County Police Department, and told said patrolman that he wanted Tony Grosky examined for drunken driving. Said Tony Grosky, together with Patrolman Herman Sarcander and Edward J. Gunther went to the Hudson County Police Headquarters at Newark Turnpike, Kearny, New Jersey. The officer there in charge directed that Tony Grosky be examined by Doctor William Doody, 19 Bentley Ave., Jersey City, N.J., to determine whether said Tony Grosky was under the influence of intoxicating liquor and unfit to operate a motor vehicle. The examination by said doctor was made at about nine twenty P.M., on March 20th, 1945.
"Immediately after the examination by the doctor, said Tony Grosky was returned to the Headquarters of the Hudson County Police Department at Newark Turnpike, Kearny, New Jersey, and there incarcerated in jail.
"No complaint had then been made against him or had any warrant issued for his arrest, nor did any of the police officers advise him on which charge he was being held or was he advised he was entitled to bail or to contact his counsel."
The agreed state of facts then sets up that the defendant was appointed clerk of the Hudson County Traffic Court on June 23d, 1943, and at the same time was appointed acting judge of said court by the judge thereof, "to serve in his place and stead on such times as he was unavailable," and that the court holds regular sessions on Tuesdays and Thursdays, at 8 P.M. at room, Part I, in the Hudson County Court House.
The agreed state of facts further sets forth:
"On March 21, 1945, at about eleven A.M., said James F. McGovern, Jr., was summoned by William Diercks, a patrolman of the Hudson County Police Department to conduct a hearing at the record room of the Hudson County ...