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State v. Smith

Decided: March 21, 1966.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.


[46 NJ Page 512] The six defendants were convicted in the Municipal Court of the City of Trenton of violating two sections of the Disorderly Persons Act. On a trial de novo in the Mercer County Court, defendant Callender was again convicted on both counts and fined $100 as to each. The remaining defendants were found guilty of only one of the two charges and each was fined $100. We certified defendants' appeals before argument in the Appellate Division.

The setting of these offenses was a public meeting of the governing body of the City of Trenton held at the council chamber and called to consider an urban redevelopment program. While a citizen was speaking against the proposal, there was a disturbance in the area in which defendant Callender was seated. This was the second such distraction from that direction. The president of the City Council called for quiet so that speakers might be heard and warned "that if there were not silence we would have to ask them to leave or ask them to be removed by the sergeant-at-arms." According to the State's proof, Callender retorted "We haven't started to disrupt your meeting yet," or "We have not begun to interrupt your meeting yet." According to the defense, he said "We haven't done anything yet." These versions really differ very little since under each the word "yet" could carry the promise or threat that the disturbances would be repeated and in greater volume. So understanding Callender, the president of the Council directed a police officer to escort him from the room.

The disturbance just described was not the basis of the conviction. Rather the basis was Callender's resistance to the efforts to remove him. He locked arms with someone seated next to him and went limp. Two police officers, in the words of a witness, "had a little problem in lifting him because he's a pretty big boy," and "As they got him out of the seat he sort of fell to the floor or slid to the floor and just laid there for a moment or two, or maybe ten or fifteen seconds, and then one officer took him by his feet and the other took him by his arms and they sort of half dragged and half carried him out of the meeting chamber and deposited him in the corridor or the entrance into the chamber." While Callender was thus being removed, persons near him chanted "Freedom." The president of the Council asked the speaker then on the floor to talk more loudly to overcome the distraction and according to one witness the speaker in fact said nothing during the commotion. Upon those facts the county court

found Callender guilty of violating N.J.S. 2A:170-28 which reads:

"Any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, including schools, churches, libraries and reading rooms, is a disorderly person."

As stated above, Callender was carried into the corridor just beyond the door to the chamber, and still limp, he was lowered to the floor. Callender stretched out his legs, and the five codefendants seated themselves on the floor in a semicircle, arms and legs interlocked or intertwined. We gather they were carried away before the public meeting ended. Out of this setting stemmed the conviction of all defendants under N.J.S. 2A:170-29 which denounces as a disorderly person:

"Any person who in any place, public or private, * * *

b. Obstructs, molests or interferes with any person lawfully therein; * * *."

The factual picture will be enlarged below.


Defendant Callender contends his conviction under N.J.S. 2A:170-28 is against the weight of the evidence. We see no basis to interfere with the trial court's findings. The testimony well warranted a finding that Callender's resistance to the efforts to remove him from the chamber was disorderly, and that that conduct, with the noise necessarily generated by the mode of removal to which Callender put the police officers, did disturb the quiet and good order within the chamber.

Callender's point seems to be that his conduct could not be found to disturb or interfere with the quiet or good order of the meeting because he was "wholly passive." It toys with words thus to ...

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