Decided: May 13, 1948.
THE STATE OF NEW JERSEY, PLAINTIFF IN ERROR,
HARRY JENKINS AND EDWARD J. MESCALL, DEFENDANTS IN ERROR
On error to the Supreme Court, whose opinion is reported in 136 N.J.L. 112.
For the State, plaintiff in error, Horace K. Roberson, Prosecutor of the Pleas (William P. Gannon, Assistant Prosecutor, of counsel).
For the defendants in error, Thomas H. Brown.
[137 NJL Page 209]
Defendants in error were indicted by the Hudson County grand jury for non-feasance and misconduct in public office. They, having pleaded not guilty to the indictment, were permitted to withdraw that plea for the purpose of making application to the Supreme Court for a writ of certiorari. The application was made and the writ allowed. That court, in an opinion by Chief Justice Case, held the indictment defective for uncertainty and an order quashing the indictment was filed. From that order this writ of error was sued out by the State. A motion was subsequently made by defendants in error to dismiss the writ of error. A determination of this motion was held by the court pending argument on the merits.
It is settled law that a writ of error is not available to review the exercise by the Supreme Court of its discretionary power to quash an indictment. State v. Riggs, 92 N.J.L. 575. Particularly is that rule applicable in the instant case where the judicial discretion exercised by that court was not used capriciously in violation of settled legal principles. State v. Potter, 83 Id. 428; affirmed, 85 Id. 388.
The writ of error will be dismissed.
For affirmance -- WACHENFELD, SCHETTINO, JJ. 2.
For reversal -- THE CHANCELLOR, BODINE, DONGES, HEHER, EASTWOOD, WELLS, DILL, FREUND, McLEAN, JJ. 9.