Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The defendant, Benny Baldino, appeals from his conviction by the Bergen County Court, sitting without a jury, on an indictment charging him with maintaining in the Borough of Lodi a place "for the purpose of prostitution, in violation of Title 2, Chapter 158, Section 2a, of the Revised Statutes."
The facts are not disputed and a detailed recital thereof is unnecessary. Suffice it to say, that, in response to a complaint, two investigators of the State Alcoholic Beverage Control Commission visited defendant's premises and while there, were approached by Baldino, who offered two girls to them for the purpose of illicit sexual intercourse for a stated price. One of the girls was escorted from the premises by an investigator to his automobile parked nearby, given the money she demanded, and was arrested when her intention became unmistakably clear. The defendant, a holder of a retail consumption liquor license, upon being taken into custody, freely admitted that he had arranged for prostitutes to frequent his tavern and introduced them to male customers for the purpose
of promoting illicit sexual relations; that he did not share in the fees charged by the prostitutes in their illicit indulgences. It is undisputed that the acts of prostitution were actually consummated at places other than on defendant's premises.
The statute (R.S. 2:158-2a) under which Baldino was indicted and convicted provides:
"a. Keep, set up, maintain, or operate any place, structure, building, vehicle or conveyance for the purpose of prostitution, lewdness or assignation;
"Shall be guilty of a misdemeanor."
The question posed for our determination is solely a legal one. The defendant contends that while the arrangements for the commission of the illegal acts were made on his premises, no act of prostitution occurred there and, therefore, the proofs do not constitute the maintaining of a place for the purpose of prostitution within the spirit and meaning of the pertinent provision of the statute.
The State contends that the proofs support the conviction of the defendant as charged in the indictment; that the words of the statute "for the purpose of prostitution" encompass the maintaining of a place with the intent to promote the evil of prostitution and that the proof of that intent is sufficient to render one guilty without a showing that the parties committed the proscribed act of prostitution on the premises.
Under the common law it was not a crime for men and women to engage in fornication, prostitution or other immoral practices in private, and when engaged in such a manner as to create a public scandal and shock public morals, the practices became public nuisances. The resort to a public place for such immoral practices constituted the place a disorderly house. State v. Schlosser , 85 N.J.L. 165 (Sup. Ct. 1914); affirmed, 86 N.J.L. 374 (E. & A. ...