Campbell v. State , 62 N.J.L. 402 ( 1898 )

The opinion of the court was delivered by

Collins, J.

The indictment recited cannot be sustained as charging the unlawful sale of spirituous liquors. It is lacking in necessary averment. State v. Schmid, 28 Vroom 625.

The Supreme Court assumes that the sale averred was lawful and that the permission to drink on the premises brought the case within the statute invoked to sustain the indictment. Gen. Stat., p. 1810, pl. 132. Granting both of these assumptions, still the indictment is faulty. It does not charge the offence designated by the statute, to wit, the keeping of a disorderly house. We think it plain that except where that offence consists wholly in the unlawful sale of liquors (Gen. Stat., p. 1101, pl. 273) it must be charged in the usual and well-recognized form, and especially in a ease where a statute declares the offence in terms. The elements that make the house disorderly must, of course, in every case; be stated (Linden Park Blood Horse Association v. State, 26 Vroom 557), but their statement will not dispense with the charge of the offence.

As the record before us shows that this objection was duly taken by motion to quash before the jury was sworn, we are compelled to give it effect.

The judgments of the Supreme Court and of the Monmouth Sessions are therefore reversed.

For affirmance — None.

For reversal — The Chancellor, Collins, Dixon, Garrison, Lippincott, Ludlow, Bogert, Hendrickson, Nixon, Vredbnburgh. 10.