State v. Engsberg

The opinion of the court was delivered by Tebnoi-iaed, J. The plaintiff in error was convicted in the Essex County Quarter Sessions of keeping a- disorderly house [465] in the city of Xcwark. The judgment on this conviction was brought into the Supreme Court for review by a writ of error and was there affirmed. The judgment is now before us for review on a writ of error to the Supreme Court. We are of the opinion that the judgment should stand. We think that the motion for a direction of acquittal at the close of the state’s case was rightly denied. Ho doubt such a motion is reviewable on error where, as here, the entire record of the proceeding had upon the trial is returned with the writ of error under section 136 of the Criminal Procedure act. Comp. Stat., p. 1863; State v. Contarino, 92 N. J. L. 381. But we think that an examination of the testimony shows plainly that it was the duty of the trial judge to submit the question of the guilt' of the defendant to the jury. . The indictment charged the defendant with keeping a disorderly house, and, among other illegal practices and conduct specifically set out as habitually carried on, was that the defendant willingly caused and procured men and women of evil name and fame and of dishonest conversation to frequent his house and come together, there to be and remain “soliciting and making assignations for sexual intercourse.” In support of this charge the state proved specific acts and conduct of the frequenters of the defendant’s house, and that proof was competent. State v. Littman, 86 N. J. L. 453; affirmed, 88 Id. 392. The defendant argues that the proof shows negligence only, not anything from which knowledge could be rightly inferred. But that is not so. Of course, knowledge by the proprietor of a house of illegal practices carried on therein is necessary to convict him of keeping a disorderly house,, and mere negligence, while evidential of the fact of knowledge, is not its legal equivalent; but his knowledge may be inferred as a matter of fact from evidence showing a course of practice, or frequent acts, of which, in the natural order of things, he would have been cognizant, and to which his assent would be, as a matter of [466] fact, naturally implied. State v. Callahan, 77 N. J. L. 685; State v. Mausert, 85 Id. 498. Tested by that rule there was ample evidence from which knowledge by the defendant of the frequent illegal practices in his place may be inferred. But that was not all. The evidence tended to show that more than once the defendant’s attention was expressly called to the fact that these illegal practices were being there carried on. The only other point requiring consideration relates to the cross-examination of a witness produced by the defendant. The' examination-in-chief elicited part of a conversation between the witness and one Cozzolino. Then counsel for the state on cross-examination asked: “Just what was it now, Mr. Van Ness, that Mr. Cozzolino said to 3-011?” Thereupon counsel for the defendant said : “I object,” and the only reason given was “I brought out no such, conversation.” That reason was not well founded, in fact, -for the record discloses that by repeated questions addressed to the witness, counsel for defendant put in evidence such conversation. On general principles the question put on cross-examination was proper, since the rule is that where the examination-in-chief elicits part of a conversation, the other side is entitled to cross-examine, to find out whether that was all of the conversation, and, in general, to have other relevant parts thereof.” State v. Glatzmayer, 79 N. J. L. 238. The defendant now urges for the first time that the conversation as elicited by the examination-in-chief was irrelevant and therefore improper. But if that be so, the defendant cannot complain, because where, as here, no motion is made to strike out irrelevant testimony given b3r a witness on his direct examination, opposing counsel have the right to cross-examine him on it. People v. Barry, 132 N. Y. App. Div. 231; 116 N. Y. Supp. 870; affirmed, 196 N. Y. 507; Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138; Freedman v. Bonner (Texas), 40 S. W. Rep. 47; Apple v. Board of Commissioners (Ind.), 27 N. E. Rep. 166. The defendant also now for the filrst time complains that parts of the ‘ conversation brought out on cross-examination [467] are irrelevant. But if this be so, jet no motion was made to strike it out and where, as here, the response to a question which the cross-examining counsel has a right to ask is irrelevant, and no motion is made to strike; it out, it will not lead to a reversal, because there is no judicial action for this court to review. State v. Hummer, 81 N. J. L. 430. The judgment will be affirmed, with costs. For affirmance—Swayze, Trenciiakd, Parker, Bergen, Iyalxscii, White, Heppeniieimbr, Williams, Taylor, Gardner, xIckerson, JJ. 11. For reversal—Ahne.