The opinion of the court was delivered by
Dixon, J.
At the April Term, 1896, of the Hudson County Oyer and Terminer, the defendant below was indicted for keeping a disorderly house in Weehawken between March, [260]*2601895, and the finding of the indictment, and having been thereon convicted in the Hudson Quarter Sessions and his conviction having been affirmed in the Supreme Court, he has brought into this court “the record of the proceedings at the trial” under the act of May 9th, 1894 (Gen. Stat., p. 1154), as well as the record of the judgment and bills of exceptions.
Upon the main argument in this court the defendant relied for reversal on -two propositions—-first, that the evidence did not warrant the verdict, and second, that the trial judge erred in refusing to charge that there was no evidence of any right in the defendant to exercise control over the southerly building mentioned by the witnesses.
The circumstances disclosed by the testimony are these: That during the time covered by the indictment the defendant kept a tavern at Weehawken, near the ferry from Yew York; that adjoining his tavern on the north was a dwelling-house owned and occupied by his mother ; that adjoining the dwelling on the north was a long low building, also owned by his mother but not used except as hereafter stated; that a few feet from the tavern, on the south, was another long low building, used only as hereafter stated, and belonging to an unknown owner; that from a side door of the defendant’s bar-room a pathway or passageway led to the rear door of the low building on the north, and that the entrance to the building on the south was near the end of the piazza in front of the tavern; that the defendant’s mother never looked after the building on the north, never let it to anyone or got any rent for'it, but that the defendant took care of it for her; that these four buildings were in an out-of-the-way ■place and there were no other buildings within five hundred feet of them except one which had formerly been a pool-room and was then a factory; that on many occasions during the time embraced in the indictment crowds of men came over from Yew York, visited the defendant’s bar-room and sauntered around the premises; that on an afternoon in January, 1896, a number of persons came over from Yew York and went directly into the northerly building and there [261] openly engaged iu gambling at “ red and black; ” that on an afternoon in April, 1896, a crowd, numbering between one hundred and two hundred, were in the same building, openly buying pools on horse-races run in St. Louis and New Orleans, and at the same time from fifty to seventy-five men were openly gambling at faro, poker, roulette and other games in the building south of the tavern, the people passing back and forth from one building to the other; that the defendant, as a witness on his own behalf, had no reasonable explanation to offer of the inducement which brought these crowds of idlers from New York or of the right the gamblers seemed to have to use the northerly building which was under his care solely, but confined himself to a bare denial of knowledge that there had been any gambling anywhere about the premises.
We think these circumstances fully warranted the jury in finding that the defendant maintained the northerly building as a disorderly house. The openness with which the gambling was carried on, the crowds of men participating in it, his business of supplying drink in such close proximity to the gambling-room, with a visible pathway leading therefrom in the rear to his bar-room, coupled with the fact that he and he alone took care of the gambling-room, point strongly to the conclusion that he knew of the gambling and authorized the use of the room for gambling purposes:
With regard to the southerly building, there are two answers to the claim of the defendant.
First. The use of that building for gambling was so closely connected with the use of the northerly building for the same purpose as to make it a fair question for the jury whether, if the defendant maintained the latter, he did not also maintain the former. There appeared to be no other proprietor for either of them, nor did any other person seem to have any interest in their maintenance, while no doubt both afforded material aid to the traffic over the defendant’s bar. It was a permissible inference from all the circumstances that both gambling-rooms were parts of one establishment, and as such were under the defendant’s control.
[262] Secondly. The only witness who testified to gambling in the southerly building testified to the pool-selling in the northerly building, and it is incredible that the jury should have believed his testimony as to the former and not have believed it as to the latter. If, therefore, they concluded that the defendant maintained a gambling-room in the southerly building they must have concluded that he also maintained one in the northerly building, and the verdict would not have been different if the jury had been charged as requested. If, on the other hand, the jury did not believe that the defendant controlled the southerly building, they must have acquitted him of criminality with respect to that building, under the charge, which was given to the effect that his guilt depended on his keeping or causing to be kept the gambling establishment. Hence it appears that this refusal to charge could not, in any rational view of the ease, have prejudiced the defendant on the merits.
Our conclusion is that the defendant was lawfully convicted.
After this conclusion was announced, the defendant ajiplied for a further hearing, because he had been sentenced to confinement at hard labor for one year in the state prison, notwithstanding the act of May 15th, 1894 (Gen. Stat., p. 1162), which declares that such a term of imprisonment must be served in the county penitentiary. This application having been granted, the point has been argued before us.
The objection is not one that can be made under the act of May 9th, 1894 (Gen. Stat, p. 1154), which is limited to proceedings at the trial (Kohl v. State, 36 Atl. Rep. 104), nor is there any assignment of error directed against it. Still, as the matter complained of is clearly illegal and prejudicial to the defendant, we think the court should exercise its corrective power.
The pertinent statutes are section 192 of the Crimes act (Gen. Stat., p. 1083) and paragraphs 169 and 216 under the title “Criminal Procedure” (Gen. Stat., p. 1117).
Section 192 provides that, for such a misdemeanor as that oí which the defendant is convicted, the offender shall be [263] punished by imprisonment at hard labor or otherwise, not exceeding two years, or by fine not exceeding $500, or both. This section indicates the scope of the matters relating to the penalty which are committed to the judgment of the court. It may determine the duration of the imprisonment-—not exceeding two years—and its character—whether it shall be at hard labor or not—but the court is not, in terms, authorized to designate the place of imprisonment.
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The opinion of the court was delivered by
Dixon, J.
At the April Term, 1896, of the Hudson County Oyer and Terminer, the defendant below was indicted for keeping a disorderly house in Weehawken between March, [260]*2601895, and the finding of the indictment, and having been thereon convicted in the Hudson Quarter Sessions and his conviction having been affirmed in the Supreme Court, he has brought into this court “the record of the proceedings at the trial” under the act of May 9th, 1894 (Gen. Stat., p. 1154), as well as the record of the judgment and bills of exceptions.
Upon the main argument in this court the defendant relied for reversal on -two propositions—-first, that the evidence did not warrant the verdict, and second, that the trial judge erred in refusing to charge that there was no evidence of any right in the defendant to exercise control over the southerly building mentioned by the witnesses.
The circumstances disclosed by the testimony are these: That during the time covered by the indictment the defendant kept a tavern at Weehawken, near the ferry from Yew York; that adjoining his tavern on the north was a dwelling-house owned and occupied by his mother ; that adjoining the dwelling on the north was a long low building, also owned by his mother but not used except as hereafter stated; that a few feet from the tavern, on the south, was another long low building, used only as hereafter stated, and belonging to an unknown owner; that from a side door of the defendant’s bar-room a pathway or passageway led to the rear door of the low building on the north, and that the entrance to the building on the south was near the end of the piazza in front of the tavern; that the defendant’s mother never looked after the building on the north, never let it to anyone or got any rent for'it, but that the defendant took care of it for her; that these four buildings were in an out-of-the-way ■place and there were no other buildings within five hundred feet of them except one which had formerly been a pool-room and was then a factory; that on many occasions during the time embraced in the indictment crowds of men came over from Yew York, visited the defendant’s bar-room and sauntered around the premises; that on an afternoon in January, 1896, a number of persons came over from Yew York and went directly into the northerly building and there [261] openly engaged iu gambling at “ red and black; ” that on an afternoon in April, 1896, a crowd, numbering between one hundred and two hundred, were in the same building, openly buying pools on horse-races run in St. Louis and New Orleans, and at the same time from fifty to seventy-five men were openly gambling at faro, poker, roulette and other games in the building south of the tavern, the people passing back and forth from one building to the other; that the defendant, as a witness on his own behalf, had no reasonable explanation to offer of the inducement which brought these crowds of idlers from New York or of the right the gamblers seemed to have to use the northerly building which was under his care solely, but confined himself to a bare denial of knowledge that there had been any gambling anywhere about the premises.
We think these circumstances fully warranted the jury in finding that the defendant maintained the northerly building as a disorderly house. The openness with which the gambling was carried on, the crowds of men participating in it, his business of supplying drink in such close proximity to the gambling-room, with a visible pathway leading therefrom in the rear to his bar-room, coupled with the fact that he and he alone took care of the gambling-room, point strongly to the conclusion that he knew of the gambling and authorized the use of the room for gambling purposes:
With regard to the southerly building, there are two answers to the claim of the defendant.
First. The use of that building for gambling was so closely connected with the use of the northerly building for the same purpose as to make it a fair question for the jury whether, if the defendant maintained the latter, he did not also maintain the former. There appeared to be no other proprietor for either of them, nor did any other person seem to have any interest in their maintenance, while no doubt both afforded material aid to the traffic over the defendant’s bar. It was a permissible inference from all the circumstances that both gambling-rooms were parts of one establishment, and as such were under the defendant’s control.
[262] Secondly. The only witness who testified to gambling in the southerly building testified to the pool-selling in the northerly building, and it is incredible that the jury should have believed his testimony as to the former and not have believed it as to the latter. If, therefore, they concluded that the defendant maintained a gambling-room in the southerly building they must have concluded that he also maintained one in the northerly building, and the verdict would not have been different if the jury had been charged as requested. If, on the other hand, the jury did not believe that the defendant controlled the southerly building, they must have acquitted him of criminality with respect to that building, under the charge, which was given to the effect that his guilt depended on his keeping or causing to be kept the gambling establishment. Hence it appears that this refusal to charge could not, in any rational view of the ease, have prejudiced the defendant on the merits.
Our conclusion is that the defendant was lawfully convicted.
After this conclusion was announced, the defendant ajiplied for a further hearing, because he had been sentenced to confinement at hard labor for one year in the state prison, notwithstanding the act of May 15th, 1894 (Gen. Stat., p. 1162), which declares that such a term of imprisonment must be served in the county penitentiary. This application having been granted, the point has been argued before us.
The objection is not one that can be made under the act of May 9th, 1894 (Gen. Stat, p. 1154), which is limited to proceedings at the trial (Kohl v. State, 36 Atl. Rep. 104), nor is there any assignment of error directed against it. Still, as the matter complained of is clearly illegal and prejudicial to the defendant, we think the court should exercise its corrective power.
The pertinent statutes are section 192 of the Crimes act (Gen. Stat., p. 1083) and paragraphs 169 and 216 under the title “Criminal Procedure” (Gen. Stat., p. 1117).
Section 192 provides that, for such a misdemeanor as that oí which the defendant is convicted, the offender shall be [263] punished by imprisonment at hard labor or otherwise, not exceeding two years, or by fine not exceeding $500, or both. This section indicates the scope of the matters relating to the penalty which are committed to the judgment of the court. It may determine the duration of the imprisonment-—not exceeding two years—and its character—whether it shall be at hard labor or not—but the court is not, in terms, authorized to designate the place of imprisonment.
Paragraph 169 under Criminal Procedure enacts “that every persou sentenced to hard labor and imprisonment under the laws of this state for any time not less than six months shall, within twenty days after such sentence, be transported * * * by the sheriff of the county * * * to the state prison, and there delivered into the custody of the keeper of said prison, together with a copy of the sentence of the court ordering such punishment, * * * and said person so delivered to the keeper of said prison shali be safely kept therein until the time of his confinement shall have expired.”
The later paragraph (216), enacted May loth, 1894, provides “ that in any county of this state wherein a penitentiary is located, every person sentenced to hard labor and imprisonment under the laws of this state, for any time over six and not exceeding eighteen months, shall be imprisoned in the penitentiary located wherein such conviction was had, instead of state prison.”
The language of these paragraphs plainly confines the scope of the sentence to the duration and character of the imprisonment, and whenever the offender is sentenced to imjn’isonmeut at hard labor for six months or over, the statute designates the place of imprisonment. It follows from this that in such cases the designation of the place of imprisonment forms no part of the judgment or sentence of the court. While the place of confinement may be and usually is declared by the court when pronouncing sentence, and is usually entered upon the minutes and even inserted in the record, as if it were part of the judgment, yet in legal contemplation it is not such, and its legitimate function is merely by way of [264] direction to the executive officers of the court as to the mode in which the judgment or sentence shall be carried into execution. This interpretation of the statutes is in harmony with the doctrine of the common law, according to which the place of imprisonment was not specified in the sentence, but was indicated by the warrant issued thereon. Ex parte Waterman, 33 Fed. Rep. 29; 4 Bl. Com. 404; Dodge v. State, 4 Zab. 455, 466.
It appears by one of our public statutes (Pamph. L. 1872, p. 1129) that there is a penitentiary in the county Of Hudson, and consequently the direction that the defendant should be confined at hard labor for the term of one year in the state prison was illegal so far as it related to the place of imprisonment; but as that direction forms no part of the legal judgment, it may now be set aside and annulled without impairing or affecting the judgment itself.
Our opinion therefore is that the designation of the place of imprisonment should be stricken from the record as not legally a part of the judgment of the Quarter Sessions, that the judgment then remaining in the record should be affirmed and the record should forthwith be remitted to the Sessions, in order that the judgment'may be executed according to law.