On appeal from the Supreme Court, whose opinion is reported in 135 N.J.L. 86, sub nomine George v. Ziegener.
For the respondent. William George, George P. Moser.
For the appellant, John R. Longo, Raymond Chasan.
For the State of New Jersey, Horace K. Roberson, Prosecutor of the Pleas in and for the County of Hudson.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The papers carry the title "William George, Prosecutor-Respondent, vs. August Ziegener, Judge of the Hudson County Quarter Sessions, and John R. Longo, Defendants." They have to do with the criminal case of State v. Longo, 133 N.J.L. 301, and should be entitled in that cause, Curtis v. Joyce, 90 Id. 47; Affirmed, 91 Id. 685; State v. Stevens, 133 Id. 488. The appeal is from a judgment of the Supreme Court, sub nomine George v. Ziegener, 135 Id. 86, setting aside an order of the Hudson County Quarter Sessions which granted a new trial on the indictment for altering a public record upon the ground that the conviction had been the result of fraud.
The finding of fraud arose out of the following circumstance: William George, then assistant to the Prosecutor of the Pleas for the County of Hudson, had prosecuted the indictment to conviction. At the trial he placed upon the witness stand J. Owen Grundy, a co-defendant who had plead guilty and who gave the highly material testimony that he had altered the record in question at the request and in the presence of defendant Longo. Grundy had previously testified before the grand jury to a diametrically opposite state of facts. Mr. George had full knowledge of that circumstance but did not inform either the court or the jury of it; an omission which, in the opinion of the Court of Quarter Sessions, was aggravated in that Longo was not represented by counsel at the trial, did not participate therein and had no legal protection other than that of the court and such as the state owed him. The court found that Grundy had committed perjury either before the grand jury or at the trial of the indictment and that Mr. George's failure to disclose the fact constituted a deliberate fraud upon the court and jury, as a result of which Longo was deprived not only of a fair trial but of a legal one. Thereupon the Sessions made the order for a new trial. We reserve decision on the merits of the order, although we note, as against respondent's contention that the court lacked jurisdiction because of lapse of time, that there is respectable judicial authority for the contention that a new trial may be granted on grounds of fraud
even after the expiration of the term in which the final judgment was regularly perfected. State v. Tolla, 73 N.J.L. 249; Partlow v. State (Ind.), 144 N.E. Rep. 661; City of Chicago v. Nodeck (ILL.), 67 Id. 39. Respondent, in a supplement to his brief, directs attention to the recent decision by the United States Supreme Court in United States v. William F. Smith, 331 U.S. 469, as against that proposition; but he passes over the following notation in Footnote No. 4: "Of course, the federal courts have power to investigate whether a judgment was obtained by fraud and make whatever modification is necessary, at any time. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575; 90 L. Ed. 1447; 66 S. Ct. 1176."
George, together with his superior, the Prosecutor of the Pleas, was out of office at the time of the proceedings relating to a new trial. Because the office of County Prosecutor was vacant, the Attorney-General of the state, with the aid of his assistants, had taken over the duties of the Prosecutor and he, in person, appeared for the state at the hearing on the application for a new trial. At his invitation Mr. George was present as a witness and testified at length. After the Sessions had acted, George, as a resident and taxpayer of Hudson County, applied to the Supreme Court for a writ of certiorari to review the order. The Supreme Court, 134 N.J.L. 347, allowed the writ in an opinion wherein it said:
"The status of Mr. George as a resident and taxpayer of Hudson County is sufficient to warrant this application by him. Furthermore, the importance of the question involved is such as, in the opinion of the court, to warrant the issuance of the writ on its own motion.
"The writ of certiorari is allowed with leave to both parties to take depositions on five days' notice."
George had no standing as a resident, a taxpayer or otherwise to seek a writ of certiorari to review a finding for or against another in a proceeding under an indictment. He was not a party to the action and he did not represent a party. However hurtful a court opinion may be to ...