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State v. Gavin

Decided: August 8, 1947.

STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT,
v.
JAMES J. GAVIN, DEFENDANT-PETITIONER



On petition for summary review.

For the complainant-respondent, Donald G. Collester, First Assistant Prosecutor of Passaic County.

For the defendant-petitioner, Bernard L. Stafford.

Eastwood

[136 NJL Page 47] EASTWOOD, J. Defendant-petitioner, James J. Gavin, seeks a reversal of his conviction on a charge of operating an automobile

while under the influence of intoxicating liquor on June 19th, 1947, "at or near the boundary of Prospect Park, Passaic County, N.J. * * * a public highway within the jurisdiction of the Criminal Judicial District of the County of Passaic" in violation of R.S. 39:4-50. The defendant-petitioner's application is made under and by virtue of the provisions of R.S. 39:5-23, which provides, inter alia, as follows:

"Any justice of the supreme court, upon application made to him by a verified petition for that purpose by any person against whom a sentence or judgment for the violation of any of the provisions of this subtitle has been rendered and who desires to have the legality of his conviction reviewed or the reasonableness of the sentence or penalty imposed, may order the complaint, process, proceedings, evidence and record of conviction to be forthwith brought before him, so that the legality of such proceedings and sentence or judgment or the reasonableness of the sentence or penalty may be summarily reviewed and determined."

Defendant-petitioner assigns 41 grounds for a reversal of said conviction. At the argument he abandoned the following grounds: 11 (b), 11 (e-i) and 11 (n). The application was argued orally on August 1st, 1947, at which time counsel for defendant-petitioner emphasized the following grounds for a reversal of his client's conviction, viz:

1. That the complaint before the First Criminal Judicial District Court of Passaic County is defective in that it does not set forth fully and completely the language of R.S. 39:4-50, but merely recites that the defendant "did operate a motor vehicle while under the influence of intoxicating liquor" in violation of R.S. 39:4-50.

2. That the complaint should have been made and the hearing held before the nearest magistrate.

3. That a complaint had first been made before another magistrate, had been abandoned and a new complaint then made before the First Criminal Judicial District Court of Passaic County; that the First Criminal Judicial District Court of Passaic consequently could not acquire jurisdiction of the subject-matter.

4. "That the said legislation and statutes establishing Criminal Judicial District Courts and the First Criminal Judicial District Court of Passaic County, encroaches upon the authority of the Supreme Court of New Jersey and all other courts possessing criminal jurisdiction at the time of the adoption of the state constitution."

5. That the appointment of Henry P. Schoonyoung, Recorder of the Borough of Prospect Park as Acting Judge of said First Criminal Judicial District Court by the Honorable Milton S. Schamach, the regular presiding Judge of said First Criminal Judicial District Court of Passaic County, was invalid for the reason that Judge Schamach had never been sworn ...


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