On appeal from the Essex County Court, Law Division.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Wachenfeld, J., concurring in result.
[27 NJ Page 291] Defendant was convicted in the Municipal Court of the City of Newark upon a complaint which charged that "on the 5 day of June 1957, in the City of Newark, County of Essex and State of New Jersey, [he] did fail to give a good account of himself, after being apprehended, and was in this State for an unlawful purpose. In violation of N.J.S. 2 A:170-1." He was sentenced to one year's imprisonment (six months in custody and balance
on probation) and fined $500. Upon a trial de novo of the appeal to the County Court, he was again convicted, and sentenced to six months and fined $500. We certified his further appeal upon our own motion before consideration of it by the Appellate Division.
On the evening of June 5, 1957 (it was dark), police officers apprehended one John Tamburello while he was engaged in transferring cans of alcohol from a large truck to a smaller one on a vacant lot, 8 Bruen Street, Newark. The trucks were backed, bumper to bumper, the larger truck containing 111 5-gallon cans and the smaller, to which the transfer was being made, containing 24 such cans. Tamburello was arrested. The officers hid, anticipating further quarry. Defendant drove by, made a U-turn, parked his car opposite the lot, looked up and down Bruen Street, opened the gate of the cyclone fence, walked toward the truck, and was seized, quite prematurely, when he was five feet from the truck. In answer to the queries of the officers, he gave his name and explained that he entered the lot to move his bowels. A search of defendant revealed a slip of paper containing names, locations and numbers, which defendant declined to explain. He was taken to headquarters, where he refused to answer any questions.
Before the County Court it was stipulated that the "liquid found on the premises in the truck was alcohol." There was no evidence or stipulation of any illegality with respect to the alcohol. Defendant sought to explain his presence on the lot and the slip of paper. The court found his testimony to be wholly unbelievable, a finding which was clearly warranted. The court concluded that defendant "failed to give a good account of himself at the time he was apprehended and was in this State for an unlawful purpose * * * he was associated in some way, in some manner, with the alcohol found on the premises."
Defendant testified without contradiction that he is a resident of East Hanover, New Jersey, and earns $250 a week as supervisor of the Greenwood Swim Club, in which he is financially interested.
Defendant challenges the validity and applicability of the statute and the sufficiency of the proof.
The statute is the first paragraph of N.J.S. 2 A:170-1 which reads:
"Any person who is apprehended and cannot give a good account of himself, or who is engaged in an illegal occupation and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation is prima facie evidence that he is present in this state for an unlawful purpose."
As it now stands the statute might be read not to require proof that one "who is apprehended and cannot give a good account of himself" is "in this state for an unlawful purpose." We are satisfied that the element last mentioned is an essential ingredient of the offense, as the State in fact assumed in the present prosecution. To ...