State v. Pisaniello

The opinión of the court was delivered by Parker, J.

The law seems to be settled that a motion to quash is addressed to the discretion of the court, and the denial of such a motion per se and without reference to its *265 function as a foundation for a later motion addressed to the legality of the indictment, is not reviewable on strict writ of error. State v. Meeker, 72 N. J. L. 210. Prior to that decision, the point had been mooted, but not decided. Parks v. State, 62 Id. 664, 665. The Supreme Court properly followed the ruling in the Meeker case.

The Supreme Court further held, in the case at bar, that the denial of a motion to quash could not be reviewed under section 136 (although that section expressly provides for a review of rulings resting in discretion), because it relates only to “proceedings had upon the trial,” and a motion to quash is normally made before the jury is sworn. In State v. Meeker, supra, the late Justice Dixon, speaking for this court, treated the denial of a motion to quash as reviewable under section 136, and this court decided it on its merits; but the court evidently overlooked the language of the statute, which in addition to the clause just quoted, says, “if it appear from such record (of the entire proceedings had upon the trial) that the plaintiff in error on the trial below suffered manifest wrong and injury, either in the admission or rejection of testimony * * * or in the charge of the court/'1 &c. On mature consideration, vre agree with the view of the Supreme Court, that a refusal to quash is not reviewable under section 136. This would clearly be so if the indictment had been brought into the Supreme Court by certiorari and returned to the court below for trial. That a matter occurring after trial is not reviewable, as, e. g., denial of a new trial, was held in State v. Van Stavern, 67 N. J. L. 235.

But the same points urged on the motion to quash were repeated on a motion to direct an acquittal, and the denial of that motion was reviewed in the Supreme Court. As they go to the foundation of the indictment, they could be raised for the first time on motion in arrest of judgment, or even in the appellate court, for they are apparent on the record. State v. Flynn, 76 N. J. L. 473; 15 Cent. Dig., tit. “Criminal Lata,” § 2627; 12 Cyc. 811, 812. So we need not stop *266 to consider whether it is proper practice to move for the direction of an acquittal at the close of the evidence on the ground that the indictment fails to charge a crime. The denial of such a motion was reviewed and certain counts of the indictment held bad, in State v. Terry, 72 N. J. L. 375, 377.

Taking up the points urged against the substance of the indictment on the merits, they are:

1. The alleged unconstitutionality - of the act; of 1908. Pamph. L., p. 375; Comp. Stat., p. 1769, pi. 70d et seq. The section now in question is section 3, placitum 70/. It is true that section 2 of that act was declared unconstitutional as infringing the fourteenth amendment of the federal constitution (In re Van Horne, 74 N. J. Eq. 600), but that decision was put on grounds quite inapplicable to section 3, as pointed out by the Supreme Court.

The point that section 3 of the act of 1908 restricts the criminality of sales to minors, to sales by licensed sellers, is without substance, as sales without license generally are covered by other statutes, e. g., Crimes act, section 66; Werts act of 1889 (Comp. Stat., p. 2903, &c.), sections 1 and 2. The object of the section under consideration was to limit the lawful sales that might be made by licensed sellers. As between the latter there is no discrimination. And in any event, the fourteenth amendment is not applicable. Hoboken v. Goodman, 68 N. J. L. 217.

The point that the title of the act of 1908 is insufficient because it is a supplement to the Crimes act, and the act embraces several offences, seems frivolous. The “act for the punishment of crimes” embraces many offences, and no reason appears why a supplement to it should be limited to one. It is also urged that the act of 1908 prescribes no punishment. It provides that certain offences shall be misdemeanors; and as a supplement to the Crimes act it becomes part of that act, wherein the punishment of misdemeanors is prescribed. Comp. Stat., p. 1812, § 218.

Finally, it is urged against the indictment that the act of *267 1908 is inapplicable in Jersey City because a prior act of 1878 applies. Comp. Stat., p. 2936. We concur in tlie view of tlie Supreme Court that the later statute is controlling.

The other points relate to rulings on evidence and the charge of the court and alleged refusal to charge as requested. We have examined them and find it unnecessary to add anything to the per curiam opinion of the Supreme Court.

The judgment will be affirmed.

For affirmance—The Chancellor, Swayjce, Treno hard, Parker, Bergen, Kaljlsch, Black, Vredenburgh, Terhune, Heppentieoier, Williams, Taylor, JJ. 12.

For reversal—None.