Jacobs, Eastwood and Freund. The opinion of the court was delivered by Eastwood, J.A.D.
Defendant appeals from a judgment of conviction of simple assault and battery in the Union County Court, Law Division.
A statement of the facts and history of the litigation concerning this matter is essential to a thorough understanding of its determination. The defendant and certain other co-defendants were indicted by the Union County grand jury in 1946, for assault and battery upon one Anthony Ajar, with intent to kill. The matter arises out of the personal injuries suffered by Ajar, a foreman at the Phelps Dodge Copper Products plant at Elizabeth, New Jersey, July 30, 1946, during violence which flared in a labor strike. In 1947, Frank Blusewicz, one of Narushef's co-defendants, made an unsuccessful attack upon the validity of another indictment returned against him. See State v. Blusewicz , 135 N.J.L. 591 (Sup. Ct. 1947). Subsequently, indictments returned against Wesley Mitchell and Charles Stewart were attacked on application for writ of certiorari to the former Supreme Court en banc , as test cases in behalf of all defendants, including the defendant, Theodore Narushef. The asserted basis of the attack was that the May and October, 1946, grand juries were illegally empanelled and selected. The Supreme Court allowed the writs of certiorari (see State v. Mitchell and Stewart , 136 N.J.L. 420 (Sup. Ct. 1948)), and proofs were taken. With the advent of the court system created by the 1947 Constitution, the Appellate Division of the Superior Court succeeded to the jurisdiction of the former Supreme Court and, after hearing arguments on the proofs, determined the matter adversely to the defendants. See State v. Mitchell and State v. Stewart , 2 N.J. Super. 15 (App. Div. 1949). Mitchell proceeded to trial without further appeal or effort to prove the alleged illegality of the selection of the grand juries in question.
On September 18, 1950, defendant's attorney acknowledged service of notice of trial set for October 2, 1950, and his appeal for adjournment was granted. A new notice of trial
for January 29, 1951, was served upon defendant's attorney on January 3, 1951. The defendant again moved for an adjournment of the trial. On January 24, 1951, the defendant served upon the prosecutor of the pleas of Union County a notice of motion to dismiss the indictment in question. This was the first occasion in the history of this particular case that an application was made to dismiss the indictment and to permit the taking of depositions to prove that the October term, 1946, grand jury was illegally empanelled and selected. The defendant's motions for postponement of the trial and to dismiss were denied by the trial court on January 29, 1951. On February 16, 1951, the defendant's application to the Appellate Division of the Superior Court for leave to appeal from the trial court's refusal to dismiss was denied.
The defendant argues two grounds for reversal of his conviction: (1) that the trial court's denial of his "motions to dismiss the indictment on grounds charging discrimination in the selection of the grand jury and to take depositions in support thereof" deprived defendant of rights guaranteed by the Constitutions of the United States and the State of New Jersey; and (2) that the verdict was against the weight of the evidence.
As we have previously commented, it is not seriously disputed that the indictment sub judice is one of a series returned by the Union County grand juries for the May and October terms, 1946, against several defendants for alleged criminal acts growing out of a labor strike at the Phelps Dodge Company plant. Two of these defendants, Charles Stewart and Wesley Mitchell, made untimely applications for writs of certiorari to review their indictments and the reviewing court held in State v. Stewart and State v. Mitchell , 2 N.J. Super. 15, 20 (App. Div. 1949):
" R.S. 2:189-7 provided for the allowance of a writ of certiorari to remove an indictment, at the instance of an indicted person 'within three months after the entry of any plea.' Stewart did not move
for his writ until well over a year from the date of his plea and Mitchell did not move until over three months after his plea. No justification has been advanced for the delay. The public interest demands that unnecessary delays in bringing indictments to trial be eliminated and the three months statutory limitation as applied to the facts presented appears wholly reasonable. Cf. Red Oaks, Inc., v. Dorez, Inc. , 117 N.J.L. 280 (Sup. Ct. 1936); Peckitt v. Board of Adjustment , 136 N.J.L. 405 (Sup. Ct. 1948). Under these circumstances the relief sought here by the defendants might well be denied and their writs dismissed without more."
Certainly, Narushef's failure to institute any previous proceedings for a review of the indictment entitles him to little or no consideration. Particularly is this so in view of the fact that in the Stewart and Mitchell test cases, several hundred witnesses were examined in an attempt to establish the illegal empanelling and selection of the grand jurors; and also, notwithstanding the adverse decision in the Stewart and Mitchell cases, Narushef took no steps whatever to make any further attack upon the selection of grand jurors until January 24, 1951. Narushef, in his application to dismiss the indictment and to take further proofs, did not submit any ...