76 N.J.L. 295 | N.J. | 1908
The defendants were indicted at the Hudson Oyer and Terminer for conspiracy to obstruct a primary election by unlawfully arresting the election board. The indictment has been brought to this court by certiorari and a motion made to quash because of partiality on the part of the sheriff in selecting the grand jury.
A similar question was presented in Gibbs & Stanton v. State, 16 Vroom 379. In that case Chief Justice Beasley said: “That the prisoner, before he has pleaded, has the legal right to appeal to the discretion of the court to quash the indictment on account of the illegal composition of the grand jury, or of the misbehavior of the sheriff in selecting it,'is everywhere admitted.” The only question which the court, composed at that time besides the Chief Justice, of Justices Depue, Van Sj^ckel and Knapp, considered worthy of discussion was whether such an objection, which admittedly could be raised by an appeal to the discretion of the court on a motion to quash, could also be raised as a matter of legal right by a plea in abatement. It was held that a motion to qrrash was the only method. The decision was affirmed in the Court of Errors and Appeals on the opinion of the Supreme Court. The defendants in the present case have followed the procedure there pointed out. The learned Chief Justice cited no authority and thought his proposition too clear to require support. A reference to the record of the case shows that it was thoroughly discussed at the bar, and that the objections to permitting an indictment to be questioned after it has been presented to the court were stated with great force and ability by Mr. Justice Magie in his opinion on the demurrer to pleas. All these objections were present to the mind of the court, and the opinion was the result of careful and deliberate consideration. We are not at liberty at this late day to disregard a decision concurred in by so many eminent judges. The remarks of the Chief Justice on this subject in that case have recently been criticised as having been unnecessary for the decision, and we have therefore thought it advisable to reexamine the question with the care which its importance de
By our constitution no person can be held to answer for a criminal offence, unless on the presentment or indictment of a grand jury. This must mean a legally constituted grand jury having the qualities which grand juries were required to have at the time the constitution was adopted, so far as those qualities are essential to secure the end of the protection of individual liberty. As was said by the Supreme Court of the United States in Thompson v. Utah, 170 U. S. 343, referring to the traverse jury: “It must consequently be taken that the word ‘jury5 and the words Erial by jury’ were placed in the constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument.” Our own Court of Errors and Appeals, while conceding a right in the legislature to modify procedure in unessential matters, held that “the words Erial by jury’ import a trial by a jury of twelve men, impartially selected, who must unanimously concur in the verdict.” Brown v. State, 33 Vroom 666, 678. The court was dealing only with the trial jury, but if the constitutional guarantee against prosecution for a criminal offence, except after indictment by a grand jury, is to be of any efficacy, it must be held to require such a grand jury in its essential qualities as existed when the constitution was adopted. The oath required to be taken by the sheriff indicates what is necessary in this respect. He is required to promise that he will truly, faithfully and impartially summon, impanel and return good and lawful men for jurors, able and sufficient and not suspected or procured. This oath dates from the act of March 18th, 1796 (Pat. L., p. 201, § 3), and in substance is to be found in the Colonial act of 21 George II. (1 Nev. 354). It had been upon the statute book for nearly a hundred years when the constitution was adopted. It can hardly be denied that if the grand jury is to serve its purpose of standing between the state and the citizen, it is essential that it should be impartially selected' and not chosen for the purpose of securing indictments. If the
The right of colored persons not to have men of their race excluded from service on grand juries solely on account of their color cannot be more important than the right of ' citizens of New Jersey not to be held to answer for a criminal offence unless upon indictment by a grand jury impartially summoned. The same arguments, ah inconvenienli, which are urged in the one case may be urged in the other. No doubt it is inconvenient to have a grand jury which may be competent to sit in all cases but those in which it may be incapacitated by the want of impartiality in the sheriff, but the same inconvenience must have arisen in the cases cited
We think we are required therefore, not only by the decision of our own court, but by the most important and fundamental principles, to consider the merits of the present motion.
The case shows that the indictment grew out of a heated political conflict between two factions of the Republican party for the control of the primary election in September, 1907. The sheriff was chairman of the Republican county committee and as such the official head of the party. He was thereby empowered by law to choose the Republican members of each election board who alone were to conduct the Republican primary. The language testified to have been used by him and not denied, evinces great animosity toward the leaders of the other faction. One of those leaders was the mayor of Jersey City. The difficulty out of which this indictment grew arose out of the rejection by the election boards of voters who were afterward, by advice of counsel, allowed to vote. Upon this rejection of votes some of the police force of Jersey City,
It is, moreover, shown that since the present sheriff has been in office seven indictments against prominent city officials of Jersey City, connected with the faction opposed to the sheriff, have been found but never tried, the state having in each case entered a nolle prosequi. It was abuses of this character that in England brought about the act of 3 Hen. VIII., c. 12, authorizing the court to reform the panel by taking out names and inserting others. 1 Glut. Grim. L. 310. These facts convince us that the sheriff did not act with the impartiality demanded by law, but rather as the leader of a political faction.
The motion to quash is ordinarily addressed to the discretion of the court, and it is upon this ground that the court sustained that procedure instead of the procedure by plea in abatement, which is more favored in. other jurisdictions. Whether the court in the exercise of that discretion could refuse to grant the defendant’s motion in view of the decisions of the United States Supreme Court above cited, is a question we do not feel called upon to decide. It is enough for our present purpose to say that we think no public neces
Let the indictment be quashed.