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In re Appeal of Sam Frank

Decided: April 25, 1947.

IN THE MATTER OF THE APPEAL OF SAM FRANK, FROM AN ORDER ADJUDGING HIM GUILTY OF CONTEMPT OF THE HUDSON COUNTY COURT OF QUARTER SESSIONS


On appeal from a judgment of the Hudson County Court of Quarter Sessions.

For the appellant, Maurice M. Krivit, William Reger and Abraham J. Slurzberg.

For the respondent, State of New Jersey, Horace K. Roberson, Prosecutor of the Pleas for Hudson County, and Simon L. Fisch, Deputy Attorney-General.

Before Justices Parker and Donges.

Donges

The opinion of the court was delivered by

DONGES, J. Appellant seeks a summary view under R.S. 2:15-3, et seq., of a conviction and judgment for contempt of process of the Hudson County Court of Quarter Sessions.

Appellant was adjudged in contempt of said court for failure to obey two subpoenas ad testificandum to appear as a witness at the trial of certain defendants. On May 24th, 1946, judgment was entered against appellant and he was sentenced to sixty days in the Hudson County jail and to pay a fine of $200, plus court costs, for failure to obey a subpoena to testify served upon him in the case of State v. James A. Mullanaphy et al., and was adjudged guilty of contempt and sentenced to sixty days in the Hudson County jail and to pay a fine of $200, plus costs, for failure to obey a subpoena to testify served upon him in the case of State v. Joseph J. Topolesky et al. The sentences were to run consecutively and not concurrently.

The appeal is submitted on the record and testimony taken on the hearing in the Court of Quarter Sessions. From the record it appears that appellant was indicted with Mullanaphy and Topoleski and five other persons for alleged conspiracy in two indictments. On December 3d, 1942, he pleaded guilty to both indictments in the Hudson County Quarter Sessions Court and was sentenced to one year in jail. Sentence was postponed or suspended. The state sought trial of the indictments against Topoleski and Mullanaphy on April 8th, 1946. Appellant appeared at the Prosecutor's office on April 5th, 1946, when he was served with two subpoenas, one in each of the above mentioned cases. It is not disputed that the subpoenas were duly served on appellant on April 5th for his appearance on April 8th, 1946. The appellant did not appear as directed by the subpoenas. The trial of the cases was adjourned for one week because of the absence of the appellant. Appellant was apprehended in New York City as a fugitive from justice, where he waived requisition and voluntarily returned to New Jersey. On May 9th, 1946, hearing was held and continued to May 24th, when further argument was heard and the court adjudged appellant guilty of contempt and sentence was imposed.

Under R.S. 2:15-5 this court is "invested with jurisdiction and required to rehear the matter of contempt upon which the conviction was founded, both upon the law and the facts."

Case No. 409 is a motion by appellant for a rule to have this court consider Exhibit No. 1, appended to the state of case, and not part of the record before the Court of Quarter Sessions. By the rule signed by Chief Justice Case, ordering the record of the Quarter Sessions Court to be certified to this court, it was ordered "that in lieu of taking depositions to inquire into and ascertain all facts relative and pertinent to this matter, that this court re-hear the matter exclusively on the record and testimony taken at the hearing before Court of Quarter Sessions," which rule was consented to by counsel for the appellant and the state.

We conclude that the motion should be denied, first, because the exhibit was no part of the record before the Court of Quarter Sessions, and, second, because we deem it of no materiality to the disposition of ...


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