For the appellant, William Elmer Brown, Jr. (Charles S. Moore, of counsel).
For the respondent, Harry R. Coulomb, Prosecutor of Pleas of Atlantic County; Daniel Bell, Jr., Assistant Prosecutor of Pleas of Atlantic County.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. Joseph Schwartz of Atlantic County was adjudged guilty of contempt of the Atlantic County Court of Oyer and Terminer. The alleged offense arose out of these circumstances: Mr. Schwartz was subpoenaed to appear before the October term, 1943, grand jury of Atlantic County on two occasions, November 3d and November 17th, 1943. The grand jury was investigating gambling, having been instructed to do so by the Supreme Court Justice who presides in that district. The charge to investigate gambling was delivered upon the request of the Prosecutor of the Pleas. The process first served upon Mr. Schwartz (subpoena duces tecum) required him to appear personally and bring with him "all number slips, coupons or tickets which have come into your possession since May 11th, 1943, to date and particularly * * * all number slips, coupons or tickets which came into your possession on or about October 5th, 1943." Schwartz did not bring the things called for. He explained that he no longer had them. A second such subpoena was served upon the witness for his attendance on
November 17th, and required him to produce "any documentary information or other papers which you may have in your possession concerning any violation of the criminal law which has come to your knowledge or attention." In obedience thereto he produced certain exhibits, to wit, a "few files" which included cards and advertisements announcing "Bingo" games at certain clubs, church-halls, lodges, political clubs, &c., newspaper articles, a list of untried indictments, and like data, some of which he delivered to the Prosecutor of the Pleas in the presence of the grand jury. When asked to name the persons who had turned over to him the "number slips" used for gambling in the "numbers game," which previously had been called for, the witness declined to answer. The question was repeated in various forms. The witness remained firm in his refusal to answer. He advanced these reasons to justify his attitude: that he had pledged himself not to divulge the names of his informants; that he would not go into the matter generally while the prosecutor and his staff were present. In this latter connection he said: "I have strong belief that there is corruption in the operation of both city and county law enforcements." The grand jury conferred and determined unanimously that the prosecutor and his assistant should not be excluded from the grand jury room. The witness was so advised and then and there was invited to give the information which the grand jury wished to have, whereupon the witness replied: "Mr. Foreman, I decline to give the information." At this stage it is patent that the witness was in fact recalcitrant. It remains to examine into whether the reasons which he advanced justified his attitude as a matter of law.
The prosecutor prepared a petition embodying these facts and obtained from a judge of the Oyer a rule calling upon Mr. Schwartz to show cause before that court why he should not be adjudged in contempt "of the grand jury in and for the County of Atlantic * * *" for refusing to answer these questions. On the return of the rule witnesses for the state and for Schwartz testified and the court found Schwartz guilty of contempt and sentenced him to be committed to the county jail for a period of five days, which sentence was suspended.
Our statute (R.S. 2:15-1) delineates the several matters and things that shall constitute contempt. These several acts are stated in three divisions -- a, b and c. The first two delineations of what shall constitute a contempt (a and b of the statute, supra) are not relevant. The third (c) reads: "Disobedience or resistance by any court officer, or by any party, juror, witness or other person to any lawful writ, process, order, rule, decree or command of the court."
The appellant contends that the quoted words are also inapplicable. A petition of appeal in this court sets down certain reasons challenging the conviction and judgment of the court below and praying that we rehear the matter and set aside the judgment and conviction (R.S. 2:15-3, 4, 5).
It is important to note that appellant had been a member of the immediately preceding grand jury; that the information about the existence and continuance of gambling had been imparted to him by persons, some in the employ of the City of Atlantic City, others employees of Atlantic County; that these persons wished to remain unknown lest they lose their positions; and that they, or some of them, had delivered to the ...