For the prosecutor, Thomas G. Haight, Merritt Lane and Wilfred H. Jayne, Jr.
For the state, Robert H. McCarter, assistant attorney-general.
Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The writ in this case was sued out to review the validity of an indictment presented to the Court of Oyer and Terminer of Ocean county on the 18th day of September, 1930, by the members of the grand jury impaneled and sworn at the beginning of the April term, 1930.
The situation disclosed by the state of the case is as follows: The April term of the Court of Oyer and Terminer of the county of Ocean expired on the 15th day of September, 1930. On that day, upon the application of the assistant attorney-general, the following order was made by the court: "It appearing to the court that the term of the grand jury for the April term, 1930, in and for the county of Ocean would normally expire on the 15th day of September, instant, and it being represented to the court by the assistant attorney-general that the said grand jury is still engaged in the discharge of its duties, and will not have finished its work at the stated time, it is thereupon, on this 15th day of September, 1930, on motion of the assistant attorney-general of New Jersey, ordered that the term of said grand jury be, and it is hereby extended until it shall have announced to the court that it has finished its labors and is ready to be discharged; and it is further ordered that the present April term of the said court be continued and not terminated at the close of this day's business." On the following day a new term of the Ocean county courts opened, and a new grand jury, having been duly summoned, was at that time duly impaneled and sworn, and since that date has been acting as a grand jury in and for the county of Ocean. On the 18th day of September the members of the grand jury impaneled for the April term presented to the Court of Oyer
and Terminer the indictment brought up by the present writ, and at the time of the making of such presentment the court was advised by the members of that body that the indictment had been found prior to the last day of the April term, but had not been presented earlier because of the fact that it was overlooked by the grand jury and the assistant attorney-general.
The fundamental questions involved in the present case are these: First, whether the Court of Oyer and Terminer is vested with power to extend the normal term of a grand jury beyond the period fixed by the statute, and beyond the beginning of a new term of the courts of the county after a subsequent grand jury, duly impaneled and sworn, is functioning; and, second, if no such power exists in the Court of Oyer and Terminer, then whether an indictment found by a grand jury during its term, but not presented to the court until after that term has come to an end, is a valid indictment.
Section 2 of the statute relative to the Supreme and Circuit Courts (Comp. Stat., p. 1711) provides that the Supreme Court may from time to time fix the times for holding the stated terms of the several Circuit Courts, Courts of Oyer and Terminer, Courts of Common Pleas, Courts of Quarter Sessions and Orphans Courts; provided at least three such terms of each court shall be held annually. Section 4 of our Criminal Procedure act (Comp. Stat., p. 1821) provides that "the said Court of Oyer and Terminer shall be held in the respective counties of the state at the time of holding the Circuit Courts in the same, and at any other time that the chief justice or one of the justices of the Supreme Court shall think it necessary to appoint." Pursuant to the power conferred by the statutory provision first recited, the Supreme Court some years ago appointed the times for holding the stated terms of the Circuit Court, the Court of Oyer and Terminer, &c., of the county of Ocean, fixing three terms of the said courts, the first of which begins on the second Tuesday in April, the second of which begins on the third Tuesday in September and the third of which begins on the second
Tuesday in December in each and every year. It is hardly necessary to state that, although the closing date of the respective terms is not fixed, it must occur prior to the beginning of the next succeeding term. The supplement to our Jury act, approved May 29th, 1913 (Pamph. L., p. 828, § 7), after providing the method in which the members of the grand jury shall be selected, then declares that those so selected "shall be summoned to serve as grand jurors in and for such county at the next ensuing term of the courts thereof." By virtue of this statute, it is apparent that a grand jury ceases to exist at the expiration of the term for which it is summoned to serve, if not discharged earlier. So, also, by force of this latter statute, a new grand jury is required to be impaneled and sworn at the opening of each successive term of the Court of Oyer and Terminer, and we have found nothing in any of the statutes bearing upon the question which attempts to vary this legislative mandate or to confer upon the ...