For the prosecutor, George P. Moser.
For the respondents, Raymond Chasan, for John R. Longo; Horace K. Roberson (William W. Wimmer, of counsel), for the State of New Jersey.
Before Justices Bodine, Perskie and Wachenfeld.
This writ of certiorari brings up for review an order of Hudson County Court of Quarter Sessions vacating the conviction of John R. Longo and granting a new trial.
The respondent Longo, having been previously indicted with one J. Owen Grundy, was convicted on November 15th, 1943, in the Hudson County Court of Quarter Sessions for the offense of fraudulent alteration of voting records. At the time of trial his counsel withdrew from the case because the chief witness against Longo was Grundy, whom counsel also represented.
Several employees of the register's office testified at the trial that Longo and Grundy went to the election register books and after their departure, upon examination, they found the political designation after Longo's name marked "Democrat" and that the paper was damp and rough. Checking with their poll books they discovered Longo was registered
as a Republican and changed the records accordingly. Grundy testified that in January, 1942, he, at Longo's solicitation, went with Longo to the election register books and changed the political designation after Longo's name from Republican to Democrat in order to enhance the latter's chances of receiving a political appointment. At the time of trial the public prosecutor knew that Grundy had previously testified before the grand jury denying knowledge of the alteration of the register books.
Longo was convicted by a jury in November, 1943, and sentenced in December, 1943. The conviction was affirmed by the Supreme Court in March, 1945, State v. Longo, 132 N.J.L. 515, and affirmed by the Court of Errors and Appeals in October, 1945, 133 N.J.L. 301. An application was made to the Court of Pardons and on November 5th, 1945, clemency was denied. Application was then made to the County Court of Quarter Sessions for a rule to show cause why a new trial should not be had and the rule was allowed on November 16th, 1945.
After hearings were held, on January 22d, 1946, an order was issued vacating the conviction and allowing a new trial. The court held the failure of the public prosecutor to disclose the fact that Grundy, the state's principal witness, had testified under oath before the grand jury differently from his testimony at the trial constituted a deliberate fraud upon the trial court and jury and as a result thereof the respondent Longo was deprived of a fair and legal trial.
The right of Mr. George to prosecute this action is seriously questioned upon the theory that at common law and by our statutes the criminal business of the state is prosecuted exclusively by the prosecutor of the pleas or, in his absence, by the Attorney-General of the state, and if Mr. George is recognized by this court such intervention establishes a dangerous precedent and an incursion upon the sovereign rights of the state.
We feel bound by the decision of this court holding the status of Mr. George sufficient and reciting that the importance of the question involved warranted the issuance ...