On appeal from the Hudson County Court, Criminal Division.
For affirmance -- Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt and Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J. Wachenfeld, J. (dissenting). I am authorized to say that Mr. Chief Justice Vanderbilt joins in this dissent.
This is an appeal by the defendant, Robert C. Smith, from an order of the Hudson County Court denying his motion to dismiss eight indictments charging him with robbery and with assault with intent to rob. These indictments were returned in the December term, 1945, true bills being voted on February 8, 1946, and the indictments being presented to the Court of Quarter Sessions of the County of Hudson on February 13, 1946. On April 3, 1946, the indictments were listed for pleading and defendant-appellant failed to appear for the simple reason, as admitted by the State, that at the time the indictments were returned and listed for pleading the defendant-appellant was in the custody of the police authorities of Passaic County awaiting the disposition of another charge there.
On April 5, 1946, a capias issued out of the Hudson County Court of Quarter Sessions and was filed as a detainer with the Passaic County authorities. On May 17, 1946, the defendant-appellant was sentenced in the Court of Quarter Sessions of the County of Passaic to serve 10 to 15 years on an indictment for robbery and 1 to 3 years on an indictment for carrying concealed weapons, to be served consecutively, making a total of 11 to 18 years to be served at the New Jersey State Prison at Trenton. On May 22, 1946, the defendant began serving the said sentences and from that time to the present he has been confined as a prisoner in the State Prison. At no time was he ever brought to Hudson
County to answer the charges pending against him nor has he entered any plea to these indictments, nor was he furnished with copies of the said indictments until recently.
Three weeks after his arrival at the State Prison on June 6, 1946, the defendant inquired of the Prosecutor of the Pleas of the County of Hudson concerning the disposition of his case, and on June 20, 1946, the prosecutor responded to the effect that the defendant had admitted in a signed statement his part in the crimes referred to and if he desired to enter a plea of guilty his appearance in court could be arranged and the matter disposed of. By letter some five years subsequent the defendant intimates he replied to this letter and stated he was innocent of the charges and did not intend to plead guilty or non vult and demanded an early trial and that this letter was never answered or acknowledged. There is no proof in the record of this alleged letter; in fact the record contains nothing between the prosecutor's reply of June 20, 1946, and a letter written on March 3, 1951, by the defendant in which he pointed out that the detainer which had been lodged against him at the State Prison because of the Hudson County indictments was almost six years old and he requested that he be brought to court so that he could meet the charges or that they be nolle prossed.
Apparently there was no reply to this letter and on May 21, 1951, the defendant moved the court on his own motion to dismiss the indictments for failure to direct that the trial of the indictments be moved upon a specified day. The letter was addressed to Judge Ziegener of the Hudson County Court under the misapprehension that Judge Ziegener was the assignment judge for the county. On May 23, 1951, Judge Ziegener addressed a letter to the defendant stating that he would refuse to dismiss the indictments and further informing the prisoner that no reply had been received by the prosecutor's office to their letter of June 20, 1946.
On May 28, 1951, the defendant wrote a letter to Judge Ziegener in which he stated he was innocent of the charges pending in Hudson County and referred to a motion of April
16, 1951, to set a date for trial, although the record before us does not embody this motion. On June 8, 1951, the first assistant prosecutor wrote the defendant stating the criminal calendars were made up to the end of June and that his case would be set down for trial when the court reopened in September, 1951.
In August, 1951, Assignment Judge Proctor designated counsel for the defendant to aid him in his defense and on August 22, 1951, the defendant through his counsel filed a notice of appeal from the decision of Judge Ziegener of May 23, 1951, denying his motion to dismiss the indictments. This appeal was perfected in the Appellate Division after leave to prosecute the appeal in forma pauperis was granted by this court on October 23, 1951, and was certified to this court on its own motion pursuant to Rules 1:2-1 and 1:5-1(a).
We are met in limine by the contention of the State that this appeal should be dismissed under Rule 2:5-3(b) (6) (a) on the ground that the refusal of the trial court to dismiss the indictments is only appealable in the discretion of the Appellate Division and no application for leave to appeal under this rule had been made. This rule, as the State points out, more or less reiterates what has been the common law practice in this State. It has been consistently held that the refusal of a trial court to quash or dismiss an indictment was not available to a defendant in the absence of clear proof of an abuse of discretion. It is not ex debito justiciae but is a matter of discretion whether the court will quash an indictment or put the party to his plea or demurrer or leave him to a motion in arrest of judgment. State v. Riggs, 92 N.J.L. 575 (E. & A. 1919); State v. Lisena, 131 N.J.L. 48 (Sup. Ct. 1943). And the State further contends correctly that the disposition of a motion such as this is always dealt with with caution and that the court is always loath to quash an indictment or dismiss it except on the clearest grounds because the result would be, in doubtful cases, that the defendant might be allowed to go scot free
because of the bar of the statute of limitations to the finding of any new indictment. State v. Tilton, 104 N.J.L. 268, p. 274 (Sup. Ct. 1928); State v. Acton, 9 N.J. Mis. R. 55 (Sup. Ct. 1931). Cf. State v. Potter, 83 N.J.L. 428 (Sup. Ct. 1912).
Since we are of the opinion that under the facts and circumstances here presented that the trial court was without power to dismiss these indictments as the legal sufficiency of them is admitted and since there is presented by these facts a question of law calling for determination, we will treat the case as one certified to the Hudson County Court on our own motion.
The first point made by the appellant is that he was denied his right to a speedy trial in violation of the State Constitution, statutes and present rules of criminal practice and the indictments should be dismissed.
The appellant relies on Article I, paragraph 10 of the Constitution of 1947 which provides that "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury." He could likewise rely on Article I, paragraph 8 of the Constitution of 1844 in effect at the time the indictments were returned. This latter constitutional provision was implemented by R.S. 2:190-1, which provided:
"Every indictment shall be tried the term or session in which issue is joined, or the term after, unless the court, for just cause, shall allow further time for the trial thereof; and if such indictment be not so tried, the defendant shall be discharged on his own recognizance."
This statutory provision has been superseded by Rule 2:12-4(b) and (c).
The appellant contends that as early as June, 1946, he made a demand for trial which was ignored by the prosecutor, that he renewed these efforts in 1951 and that it clearly appears from the record that there was a violation of the defendant's right to a speedy trial guaranteed to him by the
Constitution and the statutes and that the delay was the delay of the State since he was always available for trial and that the defendant at no time applied for a postponement or consented to the delay. It should be noted here that there is no proof in the record that the defendant is prejudiced as a result of the delay. The appellant then argues the statutes which in their express terms provide for a discharge or dismissal in case a trial is not held within a stated time should be construed as mandatory and unless the delay is caused by the accused or the trial delayed on good cause, the accused, if he comes within the provisions of the statute, must be discharged and the indictments dismissed. It can be readily conceded there are a number of cases throughout the country construing ...