For the petitioner, Saul N. Schechter and R. Robinson Chance.
For the respondent, Claude E. Cook.
Before Justices Bodine, Perskie and Porter.
BODINE, J. James C. Kelsey stands indicted for murder and for several other offenses committed in Warren County. He seeks a writ of certiorari to remove the indictments into this court for the purposes of securing the following relief: (a) A change of venue for the trial of the indictments; (b) in the alternative, a foreign jury for the trial of the indictments; (c) the quashing of the murder indictment for matters dehors, the record, and more particularly because the indictment was presented by the Warren County grand jury, admittedly before the case against petitioner had been completely investigated; (d) or in the alternative, to secure award for a foreign jury for the trial of the indictments against him should the removal into this court by certiorari be unnecessary.
On May 5th, 1941, Kelsey is alleged to have shot and killed Edward Courtney. On May 14th, 1941, he was indicted and Judge Edward A. McGrath was designated to try the indictment, Judge Egbert Rosecrans having disqualified himself. The trial was fixed for June 9th, 1941. An application was made for admission to bail which was denied. Another application was made to Mr. Justice Porter who granted the application June 2d, 1941.
Throughout the case it appears that haste was the order of the day. The indictment was found before the state had
completed its investigation of the cause, and the only witness called was Trooper Wolfe who had no first hand information of the facts. The other witness before the grand jury was a physician, who presumably testified to the death of Courtney.
Mr. Kelsey is a resident of Great Meadows, Warren County, where he lives with his wife and two children. He maintains a Wall Street office in New York City. On the evening of May 2d, 1941, he was at Weber's Tavern, about a mile from his residence. The deceased and a companion entered and drank a number of whiskies. They were very boisterous, boasting that they had broken up the last tavern they had stopped at as a result of argument over "Aid to Britain." The deceased was a driver of a moving van and was intoxicated. His helper asked for assistance in getting the ignition key of the machine because he thought him too drunk to drive. Courtney wanted a fight, which Kelsey did not desire. The deceased was a man 5 feet 11 inches tall, weighing 200 pounds and appeared possessed of great physical strength. Kelsey was compelled to remove his glasses and was struck several violent blows on the side of his face. Kelsey had, at that time, in his pocket a 25 calibre Colt automatic pistol. Tired of being beaten up, he fired a shot to one side, which seems to have struck the deceased's hand, but the wound was slight. Kelsey then fled towards his home about a mile distant. He was continually pursued by Courtney, and when he reached his house and bolted the door, Courtney pounded for admission, went into the basement and procured heavy ornaments and hurled them through the windows. He continued his effort to break into the house and was in the basement when he was shot and fatally wounded.
The petitioner's residence appears to be an old fashioned stone house removed from other dwellings. His wife was unable to get aid from the state police, being told over the telephone that there was no one at the moment who could be sent to the house which was being stormed by the drunken and violent Courtney.
The Easton Express of May 3d said: "As Courtney approached the house Kelsey is alleged ...