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State v. Boutote

Decided: March 18, 1952.

STATE OF NEW JERSEY, LLOYD J. SMITH, PLAINTIFFS,
v.
DENIS BOUTOTE, ALSO KNOWN AS DENNIS BOUTOTE, DEFENDANT



Woods, J.s.c.

Woods

[19 NJSuper Page 61] The defendant appeared before the Monmouth County Court on December 18, 1951, on a charge of violating R.S. 39:4-50, commonly referred to as the statute where the defendant is accused of operating a motor vehicle while under the influence of intoxicating liquor. In fact, the case was up on appeal from the municipal court of the Township of Freehold. The facts in the main are set forth in a brief on facts and law filed with this court by the defense attorney. This was done shortly after the court heard a motion to dismiss the complaint and the action was heard on its merits. Up to this time this court has not received from the assistant prosecutor of the pleas any memorandum to answer the points raised by counsel for the defendant.

The testimony revealed that the defendant was arrested in Freehold Township on October 30, 1951, by Motor Vehicle Inspector Lloyd J. Smith and Inspector Vogel at about 5:30 o'clock in the afternoon. At the time the defendant was driving an automobile which he had purchased for the price of $90, and which vehicle he had bought from his son, Danny Boutote, at the Cameron-Roberson Agency in Freehold Township. The car was of such character that it was rejected at the motor vehicle inspection station because the wheels were out of line and wobbled from side to side. This testimony was adduced by the defendant and corroborated by the son. Inspector Smith testified that the defendant parked his car on the right-hand side of the road and that he drove the defendant's car for over 100 feet and did not see any mechanical defect in the wheels.

The court will not review all of the testimony of the witnesses, although it has before it copious notes taken at the time of the hearing. The brief of the defense counsel recites the facts in the main. The motor vehicle inspector as well as the doctor were of the opinion that the defendant was under the influence of intoxicating liquor at the time he was arrested and was examined. There was testimony on both sides for the court to weigh, but it is chiefly concerned with the matter of jurisdiction.

It was conceded at the hearing that Magistrate Charles F. Dittmar was the magistrate duly elected for the Township of Freehold and also for the Borough of Freehold; that on hearings on infractions of the law that occurred in the township and in the borough he had designated places respectively assigned to each municipality; that the defendant was accused of violating the motor vehicle act in the Township of Freehold, and that he was tried in the Borough of Freehold.

Our Supreme Court rules provide with respect to the court room as follows:

Rule 8:13-6: "Where the municipality in which a court is held owns or maintains a building or buildings for the conduct of municipal

business, the court shall be held in one of such buildings. Where there is no such building, court shall be held in any other public building or in such other place as shall be provided by ordinance or resolution. In either case, court shall be held only in a room or rooms in which place is provided for the magistrate to sit apart from the parties, counsel, witnesses and spectators, and in which adequate seating accommodations are available for all persons lawfully present. The magistrate shall require that his courtroom shall at all times be kept clean and maintained in an orderly and dignified manner."

There was also introduced in evidence a certified copy of a resolution passed by the municipal authorities of Freehold Township on May 27, 1950, which was as follows:

"WHEREAS, it has been ascertained that the Township Meeting Room is inadequate for use as a Municipal Court,

NOW THEREFORE BE IT RESOLVED, that the East Freehold School be redecorated and remodeled for the use of said Court and that on and after October 1, 1950, the aforesaid School Building be used for the Freehold Township Municipal Court."

We are reminded, too, that R.S. 2:120-3, dealing with the holding of courts at other than regular ...


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