On writ of certiorari; motions to quash.
For the State of New Jersey, Warren Dixon, Jr., special assistant attorney-general; William A. Wachenfeld, prosecutor of the pleas for Essex county; Joseph E. Conlon, first assistant prosecutor.
For Meyer C. Ellenstein, John E. Toolan.
For Jules E. Tepper, Joseph C. Braelow.
For Irving Fieldman, John Drewen.
For Pearce R. Franklin, John W. McGeehan, Jr.
For Frank A. Boettner, Osborne, Cornish & Scheck.
For Joseph Heimberg and David B. Raschkover, Harold Simandl.
For Anthony F. Minisi, Ferdinand D. Masucci.
For Dorothy Chernin et al., Merritt Lane.
For John J. Berry, Arthur J. Connelly.
For William F. Yeomans, Jr., Congleton & McLaughlin (Richard J. Congleton).
For Harold J. McCabe, Carl Abruzzese.
For Harry S. Reichenstein, Bernard Devin.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
CASE, J. Forty indictments were found by an Essex county grand jury, most of them against officials of the city of Newark and all of them arising out of an investigation ordered by Mr. Justice Parker under the authority of chapter 3, Pamph. L. 1907, into alleged unlawful expenditures of the city of Newark. The indictments are numbered 467 to 489, inclusive, and 496 to 512, inclusive, of the September term, 1937, Essex county grand jury. Those indictments were brought into this court by a single writ of certiorari and are grouped under numerous titles with a like volume of case numbers; but all of the cases are argued under the listing of No. 213 May term, and we are therefore unable to distinguish the cases by the calendar listing. The disposition will clearly appear by the indictment numbers. The present status is that the numerous defendants, including three fictitious names, in whose behalf the writs were issued have, by the court's permission, withdrawn their pleas of not guilty for the purpose of moving to quash the indictments, and the motions to quash are now before us. The rule by which this was done limits the grounds to which the motions may go and thus some of the reasons presented in the defendants' briefs, prepared before the rule was entered, become pointless.
Mr. Warren Dixon, Jr., a Supreme Court commissioner, was designated as the statutory "expert" to conduct the investigation.
After he had completed the inquiry and rendered his report, he was appointed special assistant attorney-general to assist the prosecutor of the pleas of Essex county in prosecuting the matters criminally.
Mr. Justice Parker made the disclosures of the investigation the subject of a charge to the grand jury on October 15th, 1937, and in so doing made free use of and quoted at length from the report; indeed, it may be said that the charge was in part a cursory review, with running comments, of the high spots of the report which consisted of a book, approximating folio size of four hundred printed pages. A copy of the report was placed in the hands of each juryman. Later the justice supplemented his oral charge by a brief writing communicated to the grand jury by Mr. Dixon and hereinafter discussed.
The defendants contend that the charge of October 15th was productive of bias and prejudice in the minds of the jurors. But they submit no proof that the jurors, in coming to their findings, were influenced by bias or prejudice, either from this or any other source; and as the allegation is one of fact it is for the defendants, who advance the assertion, to prove it. Particularly is fault found with the references made to the report and with the recommendation that the jurymen read the report "and thereby get the atmosphere of the situation as a basis for the inquiry that you should yourselves make to the end that parties appearing to be guilty of crime be brought before the bar of the court for trial." We have inserted italics to emphasize the thought, obvious it would seem even without emphasis, that the jurymen should use the lengthy report with its multitude of incidents merely as their agenda, the memoranda of transactions which they should themselves investigate. The report was a court record, the epitome of many months of inquiry into allegedly unlawful and corrupt expenditures of the public funds of the city of Newark, conducted under the supervision of the Supreme Court justice who was making the charge and in accordance with the statute passed by the legislature. The charge made clear that neither the report nor the evidence
taken by the commissioner would support an indictment and that the jury was to make direct investigation: "In one sense it is unfortunate that neither the report of the commissioner nor the evidence taken by him is directly available to support indictments. So deliberate are the processes of the law, and so jealous is it of the rights of an accused party, that an indictment must rest on legal evidence submitted to or procured by the grand jury itself. * * * The transactions of the bureau should have a thorough investigation at your hands. * * * Upon reading the commissioner's report you will, no doubt, desire to investigate the matter fully. * * * The atmosphere is one of conspiracy and bribery, and the case should be thoroughly investigated * * *." There is reason to believe that the jury did not regard the report as evidential inasmuch as it made request, which was complied with, to Mr. Justice Parker for special instructions regarding the use as proofs of stenographic notes of testimony taken before Mr. Dixon in the course of his investigation. Further, the rule in this state is that the question whether the evidence before a grand jury was competent or incompetent is, saving misconduct, irrelevant on a motion to quash. State v. Dayton, 23 N.J.L. 49; State v. Borg, 8 N.J. Mis. R. 349. The citation by defendants of Hale v. Kentucky, 82 Sup. Ct. Adv. Op. Law Ed. No. 14, p. 744, and other federal decisions leads us ...