Eastwood, Goldmann and Francis.
At the September 1951 session the Bergen County grand jury returned an indictment against John Doe, Richard Roe, Harry Hoe, Joseph Doe and John Roe, charging them with the murder of one, William Moretti. On July 21, 1952 the State applied to a county judge of that county for leave to amend the indictment to substitute the name of John Robilotto, alias Johnny Roberts, alias Johnny Richards, in the place of Joseph Doe. The motion was granted and the court orally instructed a deputy county clerk to strike out the name of Joseph Doe in ink and insert Robilotto's name.
Subsequently Robilotto was extradited from the State of New York, and on August 1, 1952 he was arraigned in the Superior Court, Bergen County. There he entered a plea of not guilty and reserved the right to move to dismiss the indictment.
On August 19, 1952 a motion to dismiss was made to a county judge other than the one who permitted the amendment of the indictment. This judge deemed it inappropriate to review the action of his colleague, who was on vacation at the time, so he denied the motion exclusively on that ground, thus leaving the avenue open for the presentation of the matter
to the appropriate judge. Instead of pursuing that course, an application was made to this court for leave to appeal. The application was denied on September 8, 1952 because the order had made no determination of the merits of the motion to dismiss the indictment and consequently there was nothing from which an appeal could be taken.
During the oral argument of the application we informed counsel that the way was open for him to present the attack upon the indictment to the judge who granted amendment. During the same argument we inquired of the prosecutor if there was anything which stood in the way of re-submitting the complaint to the grand jury and seeking a new indictment. And we were informed that there was not.
In any event, no such motion to dismiss was made by Robilotto, nor did the prosecutor seek a new indictment. Instead, a writ of habeas corpus was sought and obtained from the assignment judge in an effort to review the validity of the indictment, and of the order granting the amendment, on the theory that the custody was illegal. On September 11, 1952, after argument, the writ was discharged but Robilotto was ordered released on $25,000 bail.
The record presently before us does not disclose the reason for the release on bail. However, we were advised on the oral argument that at the habeas corpus proceeding the prosecutor deemed it inadvisable to make such disclosure of his evidence as would demonstrate that Robilotto was not bailable within the meaning of Rule 2:9-1.
Robilotto now appeals from the dismissal of the writ of habeas corpus.
At the outset it should be pointed out that the extraordinary writ of habeas corpus cannot be used to accomplish the purpose sought here. Under Rule 2:5-3(a) and (b) the validity of an indictment is to be tested by a motion to dismiss, and the orderly administration of the criminal law requires that it be done in that manner. The writ of habeas corpus is not designed as a substitute for routine and completely adequate rules of practice. Nor is it designed
to serve the office of an appeal. In re Davis , 107 N.J. Eq. 160, 170 (Ch. 1930); Johnson v. Hoy , 227 U.S. 245, 33 S. Ct. 240, 57 L. Ed. 497 (1913); ...