On certiorari, on the part of the state to review the quashing of indictments by the Ocean County Court of Quarter Sessions, against respondents. Set aside.
For the prosecutor, Leo Robbins (Franklin H. Berry and Howard Ewart, of counsel).
For the respondents, Minturn & Weinberger.
Before Justices Trenchard and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The writ of certiorari is prosecuted in this case by the state at the instance and with the assistance of the Ocean County Bar Association.
Four indictments were returned against the defendants, Anthony M. Then and Benjamin W. Sangor. The learned trial judge below returned them to the prosecutor, and in so doing described them as follows:
"I am returning to you, Mr. Prosecutor, the indictments in the Then matter. I am going to decide the motion to quash in the matter of the State of New Jersey against Anthony M. Then, the State of New Jersey against Benjamin W. Sangor, and the State of New Jersey against Anthony M. Then and Benjamin W. Sangor.
"In the State of New Jersey against Anthony M. Then, there are four indictments, and this is on motion to quash four indictments against Anthony M. Then and Benjamin W. Sangor, one indictment, presented by the grand jury for the December term, 1931 and 1932, against Anthony M. Then alleging a violation of section 15 of an act of the legislature, entitled "An act concerning trust companies," Revision of 1899, and three indictments presented by the grand jury for the April term, 1932, alleging larceny and embezzlement against Anthony M. Then and Benjamin W. Sangor, individually and jointly * * *."
The only indictment that is made to appear in the record before us is the one numbered 1493. This indictment was returned by the grand inquest for the county of Ocean (Ocean Oyer and Terminer) during the April, 1932, term.
The sixth count of this indictment charged that Anthony M. Then and Benjamin W. Sangor "unlawfully and feloniously did steal, take and carry away," &c., on October 10th, 1930, securities valued at $81,320.22, "* * * of the goods
and chattels of the Toms River Trust Company, a banking corporation of the State of New Jersey, administrator pendente lite of the estate of James D. Holton, deceased * * *." Mr. Then was the president of the Toms River Trust Company and Mr. Sangor was the chairman of the board of directors thereof.
On April 17th, 1933, a motion was made to withdraw the pleas of not guilty which had theretofore, on September 26th, 1932, been made by these defendants, for the purpose of making a motion to quash all the indictments. Whereupon, on the day first mentioned such a motion was made. Decision on the motion was reserved. On May 8th, 1933, the trial judge filed an opinion granting the motion. (Let it be noted that the aforesaid motion appears as having again been made on the day it was granted, viz., May 8th, 1933.)
Respondents, in limine, strongly contend that the quashing of the indictments is not a proper subject-matter of review; that it was a matter of judicial discretion on the part of the court below and, therefore, not reviewable. Of course, it is the well recognized and firmly established principle of the law of our state that the granting or refusing to grant a motion to quash an indictment is a matter of judicial discretion. See cases collated in the exhaustive and illuminating ...