On petition for summary review.
For the complainant-respondent, no appearance.
For the defendant-petitioner, Joseph H. Gaudielle.
Before Justice Eastwood, pursuant to statute.
[137 NJL Page 507] EASTWOOD, J. This is an application of defendant-petitioner, William A. Wright, for a review of his conviction on a charge of operating an automobile while under the influence of intoxicating liquor on March 24th, 1948, on Paterson Avenue, a public highway in East Rutherford, Bergen County, in violation of R.S. 39:4-50. The order for review of said conviction was made by Mr. Justice Wachenfeld on July 22d,
1948, returnable August 2d, 1948. Another order permitted defendant to take "depositions of persons who were present at the trial held on April 23d, 1948, at the Recorder's Court in the Borough of East Rutherford, County and State aforesaid, who have any knowledge as to what took place at said trial." A transcript of the depositions of Harold L. Ackerman, recorder, and Edward A. Schmalz, chief of police of the Borough of East Rutherford, together with the complaint, process, proceedings, evidence and record of conviction have been submitted to and considered by me in review of this application.
Defendant asserts six grounds for a reversal of his conviction, viz.: (1) the complaint is defective in that it failed to allege "that the defendant was unfit to operate a motor vehicle;" (2) the warrant failed to have the proper return endorsed upon it, the same being left in blank; (3) no proof was adduced that the defendant was under the influence of intoxicating liquor and unfit to operate an automobile; (4) there was no proof that defendant had operated the motor vehicle at the time and place charged; (5) the record of conviction fails to show a legal conviction; and (6) "the proceedings were in divers other ways irregular, illegal and did not justify the rendition of a verdict of guilty."
An examination of the complaint convinces me that it is not defective. It sufficiently conforms to the language of R.S. 39:4-50. The complaint charges the defendant with one of the acts mentioned in R.S. 39:4-50, alleging that "* * * defendant, did violate a provision of section 39:4-50 of the Revised Statutes, in that on 3/24/48 at East Rutherford, Bergen County, New Jersey, at about 11:05 o'clock, P.M., The said defendant operated a motor vehicle on Paterson Ave., a public highway while under the influence of intoxicating liquor." It was not necessary to incorporate in the complaint "that the defendant was unfit to operate a motor vehicle at the time and place charged."
I find no merit in the contention that the conviction should be reversed because the warrant failed to have a return endorsed upon it. Defendant does not assert that there was no warrant issued nor that he was brought before the recorder
without the authority of a valid warrant. A warrant was issued bearing even date with the complaint to wit: March 25th, 1948, and the defendant in his application for this review states "That the warrant under which the petitioner was apprehended in said cause, failed to have the proper return endorsed upon it." It clearly appears from the record that the recorder, by virtue of said complaint and warrant acquired jurisdiction of the subject-matter and the person of the defendant. The mere fact that the return was not endorsed upon the warrant is not fatal to the conviction.
There was ample proof that the defendant was under the influence of intoxicating liquor at the time and place charged in the complaint. This was established by the testimony of police officers Sears, Meyers and Dr. Harold W. Riley, who examined defendant in his office about 11:40 P.M. (thirty-five minutes after the accident which resulted in his arrest) and who testified that he "found him to be under the influence of liquor and unfit to drive a car." The two police officers testified that they arrived at the scene of the accident almost immediately thereafter and that, in their opinion, Wright was under the influence of intoxicating liquor; that they took the defendant to Dr. Riley for examination and were present when Dr. Riley declared defendant "to be under the influence of liquor and unfit to drive."
Defendant asserts that the record of conviction fails to show a legal conviction. He fails, however, to point out in what respect the record of conviction returned by the recorder is defective. The conviction substantially ...