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State v. Rhodes

Decided: March 2, 1953.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
HARRY M. RHODES, EVA SERIN, JEROME SERIN AND ANDREW SERIN, DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Jacobs, J.

Jacobs

This is an appeal, certified by this Court on its own motion, from an order dismissing an indictment against the defendants Harry M. Rhodes, Eva Serin, Jerome Serin and Andrew Serin.

The indictment charged the defendants with conspiracy to cheat and defraud in violation of R.S. 2:119-1 (N.J.S. 2 A:98-1) and set forth the following: The defendants were president, vice-president, secretary and general manager of Lee-Jay Metal Products, Inc., a corporation engaged in manufacturing screw shells and metal stampings in the Borough of Franklin, County of Sussex. On or about December 1, 1948 the corporation entered into an agreement with Martha M. Palmer of the Township of Sparta, County of Sussex, whereby she undertook to make loans to the corporation from time to time on the security of accounts receivable, it being agreed that payments received on each account receivable to the aggregate amount of the loan thereon would be deposited by the corporation in the bank account of Martha M. Palmer in the First National Bank of Butler, New Jersey. At the same time the corporation assigned to Martha M. Palmer accounts receivable specifically set forth in the indictment. Payments were received on these accounts receivable but the

defendants did not deposit them in Martha M. Palmer's bank account and used and expended them in the business of the corporation which had no money on hand or on deposit when a custodial receiver was appointed on December 1, 1949. The indictment contained allegations that the defendants had unlawfully and corruptly conspired in the County of Sussex to use, as aforementioned, payments received on the assigned account, for the purpose of cheating and defrauding Martha M. Palmer, and had knowingly received and expended such payments, the first payment having been received on March 24, 1949 and the last on November 18, 1949. A motion to dismiss the indictment was granted by the County Court on the ground that its prosecution had been barred by the statute of limitations (R.S. 2:183-2 (N.J.S. 2 A:159-2)), and the State has duly appealed. Rule 2:5-3(b)(7).

The last overt act set forth in the indictment occurred on November 18, 1949, and under R.S. 2:183-2 the prosecution was barred if the indictment was not found within two years thereafter. State v. Ellenstein, 121 N.J.L. 304, 317 (Sup. Ct. 1938); State v. Unsworth, 85 N.J.L. 237, 242 (E. & A. 1913); Fiswick v. United States, 329 U.S. 211, 216, 67 S. Ct. 224, 91 L. Ed. 196, 200 (1946). The indictment was voted by the grand jury on Friday, November 16, 1951 but was not returned to the court on that day, apparently because the Sussex County judge was absent, on assignment to Hudson County. But cf. Rule 2:4-7. The indictment was returned to the court on Monday, November 19, 1951; the defendants contend that the preceding day, Sunday, November 18, was the last day of the two-year statutory period and that the indictment's return on the following day was beyond the prescribed time limitation.

The State's first contention is that the indictment was found on November 16, but we consider that it lacks merit. The grand jury's action on that day was in no sense final and could have been changed at any time prior to the return of the indictment. The return in open court constitutes the first objective act which renders the indictment

effective under circumstances calculated to protect the proper legal interests of both the State and the defendant. See Rule 2:4-7; State v. Unsworth, supra, at p. 238. Cf. State v. Magrath, 44 N.J.L. 227, 229 (Sup. Ct. 1882); State v. Ellison, 14 N.J. Misc. 635, 639 (Sup. Ct. 1936); State v. Davis, 107 N.J.L. 199, 203 (Sup. Ct. 1930). A contrary view would present evident dangers and enable impairment of the public policy underlying the statutory provisions prescribing periods of limitation in criminal cases. The State stresses that R.S. 2:183-2 uses the term "found" but we are satisfied that there was no legislative purpose to attach legal significance to the action of the grand jury independent of the return of the indictment into court. In common parlance, an indictment is said to be found when it has been voted upon and properly returned to the court, and there are judicial decisions to that effect. See State v. Peloquin, 106 Me. 358, 76 A. 888 (Sup. Jud. Ct. 1910); State v. Disbrow, 130 Iowa 19, 106 N.W. 263, 266 (Sup. Ct. 1906); People v. Herrmans, 69 Misc. 303, 125 N.Y.S. 143, 148 (Cty. Ct. 1910); United States v. Michael, 180 F.2d 55 (C.C.A. 3, 1949), cert. denied sub nom. United States v. Knight, 339 U.S. 978, 70 S. Ct. 1023, 94 L. Ed. 1383 (1950); 27 Am. Jur. 605 (1940). Thus, in the Disbrow case the court stated that "An indictment is found when it is presented by the grand jury in due form in open court," and in the Herrmans case the court similarly stated that "An indictment is found when it is duly presented by the grand jury in open court and there received and filed." There is no cause to believe that the term "found" in R.S. 2:183-2 was used in any different sense and we have accordingly concluded that, in the instant matter, the indictment was found on November 19.

The next contention advanced by the State is that the return of the indictment was within time since the last day of the two-year period (Sunday, November 18) was a nonjuridical day. See Heher, J., in Newark v. Smith, 120 N.J.L. 56, 59

(Sup. Ct. 1938): "Sunday is dies non juridicus. This is a general policy that has always pervaded our law." Cf. 3 Chitty's, The Practice of the Law (Am. ed. 1836), p. 103. In Ringgold, Sunday, Legal Aspects (1891), 153, the author suggests that Sunday was not a dies non in early common law as distinguished from statutory law and that anciently courts of justice sat on Sundays. See Swann v. Broome, 1 Bl. 496, 526, 97 Eng. Rep. 999, 1001 (1764). However, in the sixth century this practice was prohibited by canon law, and as Justice Magie pointed out in Glenn v. Eddy, 51 N.J.L. 255, 256 (Sup. Ct. 1889), "The prohibition became part of the common law and courts ceased to sit on Sunday, except constrained by necessity, as for the reception of the verdict of a jury." See Van Riper v. Van Riper, 4 N.J.L. * 156 (Sup. Ct. 1818). Cf. R.S. 2:29-2; R.S. 2:27-44. In any event, our courts have consistently described Sunday as dies non and have in manifold circumstances sanctioned legal action on the following Monday where the last day prescribed therefor fell on Sunday. See Von de Place v. Weller, 64 N.J.L. 155 (Sup. Ct. 1899); Williams v. Minsavich, 3 N.J. Misc. 565 (Cir. Ct. 1925); Melis & Antuzzi Co. v. Goldstein, 4 N.J. Misc. 498 (Cir. Ct. 1926); Ettrick v. State Board of Tax Appeals, 12 N.J. Misc. 432 (Sup. Ct. 1934); Great Falls Power Co. v. Andrus, 7 N.J. Misc. 3 (Sup. Ct. 1928); Southern Power Co. v. Cella, 105 N.J.L. 573 (E. & A. 1929); Potter v. Brady Transfer & Storage Co., 21 N.J. Super. 175 (App. Div. 1952).

In fixing a period of limitation the Legislature may undoubtedly prescribe the time and provide expressly how it shall be computed. See Developments in the Law -- Statutes of Limitations, 63 Harv. L. Rev. 1177 (1950). Where, as in our State, the Legislature has failed to set forth any specific method of computation, the matter becomes one of statutory construction in the light of such relevant common law guides as are ...


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