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State v. Terwilliger

Decided: March 4, 1958.


Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.


Defendants were convicted of disorderly conduct, on a complaint that they violated N.J.S. 2 A:170-31. The statute is as follows:

"Any person who trespasses on any lands, except fresh-meadow land over which the tide has ebbed and flowed continuously for 20 years or more, after being forbidden so to trespass by the owner, occupant, lessee or licensee thereof, or after public notice on the part of the owner, occupant, lessee or licensee forbidding such trespassing, which notice has been conspicuously posted adjacent to the highway bounding on such lands or adjacent to a usual entry way thereto, is a disorderly person and shall be punished by a fine of not more than $50."

Defendants are monument makers and salesmen of cemetery memorials. On January 4, 1957 they entered in a motor truck upon the public portion of the premises owned by Graceland Memorial Park Association, a rural cemetery in Kenilworth, N.J. Their purpose was to install bronze markers on designated graves by authority of certain lot owners with whom they were under contract.

Four separate complaints were made charging the respective defendants with violating the aforesaid statute. The cases were consolidated for trial. Defendants were adjudged guilty in the Municipal Court of the Borough of Kenilworth on March 25, 1957. The court suspended sentence but assessed costs of $5 against each defendant. On appeal to the Union County Court the cases were tried de novo on June 14, 1957. Defendants were again convicted, sentences were suspended and no costs were assessed against them. The present appeal is from those convictions.

The cemetery association by written instruments grants and conveys lots and plots in said cemetery for the purpose

of burial. The form of transfer is standard and is reflected in a document of the type and kind offered in evidence in this case. Each conveyance or grant is made subject to the restrictions, among others, "that no monument, tombstone, vault, marker, fence, coping, mounds, mausoleum or other structures of any kind may be erected or any hedge, plants, trees, or flowers be planted on such plot or lots, unless the same be expressly permitted by the rules and regulations of the Association, and further, subject at all times to any and all the rules and regulations of the said Memorial Park and/or Association now in force or which may be adopted hereafter." Said grant further provides that "All opening of and burial in and all improvements, embellishments, care and maintenance of said plot or lots herein conveyed shall be under the exclusive direction and control of GRACELAND MEMORIAL PARK ASSOCIATION."

On the day of the commission of the alleged offenses defendants traversed an U-shaped driveway which affords the only means of ingress to the cemetery premises from the highway and arrived at the association office which is located approximately 150 feet from the highway. They were met at the office by the secretary-treasurer of the Association; they advised him of the purpose of their visit and that they had appropriate permission and authorization from specific grave or plot owners for the installation of certain markers. The association secretary then forbade them to install such markers and directed them to leave the premises. They disregarded such command, entered the area where the graves were located and installed at least one marker. The secretary then called a police officer and on the secretary's complaint defendants were arrested and charged with violating the aforesaid statute.

The County Court determined that no public notice within the terms of the statute in question was sufficiently displayed to create an offense against the act. We agree with this conclusion.

Defendants, relying on the case of Pennsylvania R. Co. v. Fucello , 91 N.J.L. 476 (Sup. Ct. 1918), assert that they

did not violate the statute because their original entry upon the premises was lawful; that the statute is applicable to an original entry only; that the act of the secretary-treasurer of the association forbidding defendants to enter the main cemetery area and directing them to leave the property did not operate to make the original lawful entry an unlawful one so as to justify a conviction under the provisions of the statute. The County Court held however that defendants violated the statute by virtue of their refusal to obey the ...

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