For the prosecutrix, James A. Major.
For the defendant, Walter G. Winne, Prosecutor of the Pleas.
Before Case, Chief Justice, and Justices Parker and Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The writ of certiorari brings up the conviction of the prosecutrix in the Criminal Judicial District Court of Bergen County on a complaint of disorderly conduct rested upon R.S. 2:202-1. Sentence of forty days in the Bergen County jail was imposed. A review of the conviction by a judge of the Bergen County Court of Quarter Sessions under R.S. 2:214-14 resulted in an affirmance.
The complaint charged that Susan Bower did, on October 5th, 1946, at the Borough of Palisades Park, "loiter in the vicinity of Broad and Columbia Avenue at 11:15 A.M. and failed to give a good account of herself. Disorderly Conduct Title 2:202-1." The statutory provision is that "all persons * * * who shall wander abroad and lodge in taverns, inns, beer houses, houses of entertainment, market houses, outhouses, barns or other places, or in the open air, and not give a good account of themselves * * * shall be adjudged disorderly persons."
The complaint is defective in that it does not set forth an offense under the statute. Loitering is an offense under other sections of the Disorderly Persons Act (as R.S. 2:202-7 and R.S. 2:202-8), and it is a permissible subject for municipal ordinances (R.S. 40:48-1), but it is not an element under R.S. 2:202-1. The offense does not lie in simply failing to give a good account of one's self, and the complaint did not charge a violation in the words of, or, in our opinion, according to the intent of, the statute. Cf. Archer v. First Criminal Judicial District Court of the County of Bergen, 10 N.J. Mis. R. 1159; Breisia v. Court of Common Pleas of Hudson
County, 11 Id. 937. The motion to dismiss the complaint, made at the beginning of the trial, should have been granted.
The proof was that a police officer of Palisades Park was riding, in civilian clothes, in a municipal automobile which did not contain a marking of the police department. He was not on patrol duty or on any regular duty at the time but had been assigned to an investigation which he had just finished. He saw a young woman standing on the bridge at the intersection of Broad Avenue and Columbia trying to "thumb a ride from the car that was in front." The officer stopped and questioned the young woman who gave her name as Susan Bower and said that she had originally come from Bozeman, Montana; that she was then on her way from Bangor, Maine, where she had been on a farm picking potatoes, to Florida; that she had gone from Oregon to Montana and from there across the country picking potatoes on the way; that she had $14 on her person which would be enough to get her to Florida in the manner in which she was traveling; that she was not working at the moment but was on her way to get a job in Florida; that she had slept in a truck the night before on the way down from Bangor; and that she had parents who knew where she was but she refused to tell who they were or where they were. She had with her a sleeping roll and also a handbag which was searched and found to contain customary articles of personal property, including toilet articles, and a writing pad in which was folded a letter, not yet mailed, written by the accused and signed "Susan Bower" giving her address for reply as "care of General Delivery, Jacksonville, Florida." Called upon to explain the letter, she said that it related to an altercation which she had had with another girl. She gave some of the details but declined to state where the altercation took place or to give names. She wore a pair of blue overalls, rolled up to a point between her knees and ankles. Her hair was disheveled, and her face was "kind of dirty." Further information was, in general, refused.
There was proof, wholly hearsay, admitted over objection and therefore incompetent to sustain the conviction, that the chief of police of Bozeman, ...