Decided: March 2, 1939.
THE STATE OF NEW JERSEY, EX REL. ROCCO FAVORITO AND CONCETTA FAVORITO, APPLICANTS-PROSECUTORS,
DALLAS FLANNAGAN, JUDGE OF THE ESSEX COUNTY COMMON PLEAS COURT, AND RUSSELL C. GATES, CLERK OF THE COURT OF COMMON PLEAS OF ESSEX COUNTY, AND CLERK OF THE COURT OF QUARTER SESSIONS AND SPECIAL SESSIONS, DEFENDANTS-RESPONDENTS
On rule to show cause why writ of certiorari should not issue.
For the applicants-prosecutors, J. Victor D'Aloia.
For the defendants-respondents, William A. Wachenfeld (Joseph E. Conlon, of counsel).
Before Justices Case, Donges and Porter.
This matter is before us on a rule to show cause why a writ of certiorari should not issue to review an order of the respondents after trial of an indictment charging the prosecutors with committing the crime of conspiracy, of which there was a conviction.
The order in question was made upon motion to set aside the verdict and for the entry of one of not guilty, on the contention that the prosecutors were husband and wife; at law, one person and therefore incapable of committing the crime of conspiracy.
We conclude that a writ should not issue for the reason that the trial judge, the respondent, by his order in setting aside the verdict and ordering a new trial has taken every step necessary for the protection of the rights of the prosecutors to the end that they may take such steps as might be deemed necessary for the proper disposition of the case.
The rule is discharged.