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State v. Donovan

Decided: February 8, 1943.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES J. DONOVAN, DANIEL J. SWEENEY AND CORNELIUS J. O'NEILL, DEFENDANTS-PROSECUTORS



On writ of certiorari.

For the state (also for Joseph C. McNally, William E. Bradford and Bernard A. Gannon), Daniel O'Regan, Prosecutor of the Pleas of the County of Hudson, and Frank G. Schlosser, Assistant Prosecutor.

For the defendants-prosecutors, John Warren and Bernard A. Green (Maurice A. Cohen, of counsel for the defendant-prosecutor Cornelius J. O'Neill).

For Adolph A. Langer, Julius Lichtenstein.

For Frederick J. Gainsway and J. Albert Dear, Robert Carey and Harry Lane.

For John Mitchell, Platoff & Platoff (John N. Platoff).

Amicus curice, Alexander M. MacLeod (representing the New Jersey Press Association).

For Thomas H. Brown, Lewis B. Eastmead and Alexander F. Ormsby, George T. Vickers.

For Mary Parisi and Maurice M. Krivit, Maurice M. Krivit.

For William P. Heffron and Frank Farley, Thomas J. Armstrong.

Before Justices Case, Donges and Colie.

Case

The opinion of the court was delivered by

CASE, J. We have before us a series of motions arising out of the taking of depositions before Supreme Court Commissioner Drewen under the writ of certiorari, In re Donovan, 129 N.J.L. 25, by which the indictment found by the Hudson County grand jury charging James J. Donovan, Mayor and Director of Public Safety, Daniel J. Sweeney, Deputy Director of Public Safety, and Cornelius J. O'Neill, chief of police, all of the City of Bayonne, with non-feasance in office was brought into this court. The various elements of

the immediate controversies will appear in the course of this memorandum. We labor under a handicap in that the complete transcript, which has assumed voluminous proportions, is not before us; nevertheless we believe that the facts relied upon are essentially correct as stated.

The prosecutor of the pleas of Hudson County moves (1) for an order directing the commissioner to turn over to him certain exhibits now in the commissioner's possession alleged to have been stolen from the Jersey Journal, a newspaper published at Jersey City; (2) for an order vacating and quashing the taking of testimony de bene esse of certain witnesses in the State of New York; (3) for an order fixing a time for the conclusion of the taking of depositions and (4) for an order quashing a subpoena duces tecum served upon the prosecutor of the pleas.

In support of their contention that the finding of the indictment was a progressive step in a planned campaign originating and furthered outside of the prosecuting channels the indictees introduced in evidence several statements which constituted the newspaper copy upon which publication was had in the Jersey Journal and which are, in general, the statements referred to infra in the discussion of the testimony of Mr. Gainsway. The publishers of the Jersey Journal caused a John Doe complaint to be issued charging the theft of those statements from their newspaper offices, and it is upon that basis that the prosecutor asks that the physical custody of the exhibits be turned over to him. It does not appear that the typewritten statements have any appreciable money value; nevertheless it is proper that the prosecuting officers of the county, with the assistance of experts, should be permitted to make a physical examination for the discovery of finger prints and the like, which is the substance of the present application. It is unnecessary that the Supreme Court Commissioner should surrender physical custody of the papers to the prosecutor's office. The making of the examination which is proposed to be made can be done in the presence of the Supreme Court Commissioner (the papers remaining in his custody) and in the presence of the attorney for the prosecutors of the writ whose exhibits they are. That will be the order.

Prosecutors of the writ have abandoned their purpose of taking testimony in New York de bene esse; and this, in effect, disposes of the motion directed thereto. In addition, we consider that no purpose useful to the ...


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