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State v. Peterman

New Jersey Superior Court, Appellate Division


Decided: December 4, 1953.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWARD L. PETERMAN, ET AL., DEFENDANTS-PETITIONERS

Indictments Nos. 39, 40, 42, 43, 44, 45, 46, 47, 50, 52 and 53.

Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

[29 NJSuper Page 237]

Application is made for leave to appeal from orders denying defendants' motions to dismiss indictments. R.R. 3:5-5 (b) (6) (a); 2:2-4; 2:12. There have been a number of such applications in recent years, and we think it well to observe that we will not grant leave to appeal from the denial of such a motion except in a flagrant case or one where the indictment upon its face appears to be clearly defective in substance. Except in the cases stated, an application, under the old practice, for a writ of certiorari to remove an indictment into the Supreme Court for the purpose of quashing it, was denied. State v. Hart , 88 N.J.L. 150 (Sup. Ct. 1915); State v. Bolitho , 103 N.J.L. 246, 253 (Sup. Ct. 1926), affirmed 104 N.J.L. 446 (E. & A. 1927); State v. Then , 114 N.J.L. 413 (Sup. Ct. 1935); State v. Davidson , 116 N.J.L. 325 (Sup. Ct. 1936); State v. Grundy , 136 N.J.L. 96 (Sup. Ct. 1947); State v. Boyle , 137 N.J.L. 555 (Sup. Ct. 1948); cf. State v. Winne , 12 N.J. 152, 181 (1953). From that rule, which was the fixed rule for over 70 years, State v. Bolitho, supra , is drawn the rule obtaining today. The concern of the law here is with delays in criminal prosecutions that might follow upon any practice tolerating interlocutory appeals too freely. Error -- if error there be -- can be remedied by appeal after trial. Hence, where, as here, the question raised by the application appears to be "merely debatable," State v. Hart, supra , the application will be denied.

19531204


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