On appeal from the Supreme Court.
For the appellant, George F. Losche.
For the respondent, John E. Selzer.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The facts appear to be that a verified complaint was made before J. Wallace Leyden (who, in fact, was the judge of the Court of the Second Criminal Judicial District of Bergen county), in his capacity as "acting judge of the First Judicial District, &c.," probably because of the absence, temporarily or otherwise, of Judge McCarthy, who was actually and in fact and law the judge of the First District Court. This complaint was made January 24th, 1931. Thereupon a search warrant was issued by Judge Leyden in his aforesaid capacity as "acting judge," on the date of the complaint, January 24th, 1931, authorizing search and seizure of "whisky and other intoxicating liquor," in premises located at 210 Washington avenue, Little Ferry, &c. A search and seizure was made under the warrant on the day of its issue and a return was made not only of "whisky and other
intoxicating liquor," but also of "one journal book" found in the premises searched. The inventory of the goods seized was verified January 28th, 1931.
The record before us does not show how or to whom the return of the warrant was made.
On January 24th, 1931, probably as a result of the search and seizure under the warrant before referred to, a complaint was made against one Herman Becker alleging illegal possession of the liquor seized. This complaint appears to have been made before, or lodged with, Charles J. McCarthy, who was then, in fact, the judge of the Court of the First Criminal Judicial District of Bergen county, covering a territory in which is located the borough of Little Ferry wherein was the premises described in the search warrant.
As before stated the record seems to be barren of any reference to a return of the search warrant. The state of case contains a statement of an officer of a return as follows:
"Returned on the 24th day of January, 1931, with the defendant in custody." We think it must be assumed that this was the return of the warrant requiring the apprehension of Becker. Such language would not be appropriate to a return to the search warrant and, in fact, it could not be a return to the latter because, as before stated, the inventory of the goods seized was not verified until January 28th, 1931, four days after the return referred to.
Thereafter Becker gave notice of an application to be made to Judge McCarthy on February 5th, 1931, for an order to suppress as evidence certain articles and things alleged to have been unlawfully seized and in such notice set down several reasons why such order should be made.
On March 4th, 1931, Judge McCarthy proceeded to a hearing under such notice, at which hearing both the state and Becker were represented by counsel and the record shows no objection to the proceeding which resulted in an order of March 31st, 1931, ...