On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J.
The appellant, Louis J. Messano, hereinafter called Messano, appealed from an order of the Assignment Judge of the Superior Court, Hudson County, filed on November 4, 1953, denying Messano's motion to expunge from the record an entire presentment of an additional grand jury of Hudson County, reported to the assignment judge, and ordered by him to be filed, on May 5, 1953. The appeal, addressed to the Superior Court, Appellate Division, was certified on our own motion prior to hearing there. R.R. 1:10-1(a).
Succinctly the chronology of events is as follows: On November 26, 1952 a grand jury list (150 names) was filed. A panel (35 names) for the grand jury was selected from this grand jury list. The grand jury for the second stated session of the September term 1952 was organized from that panel and was sworn on January 5, 1953.
About that time the Attorney-General assumed directly the responsibility of probing alleged waterfront criminality in Hudson County.
The Assignment Judge of the Superior Court, on January 9, 1953, on the motion of the Deputy Attorney-General by order fixed January 12, 1953, as the time for drawing a panel from the original grand jury list for an additional grand jury. See N.J.S. 2 A:71-5, former Rule 2:4-1, now R.R. 3:3-1. The panel (35 names) was drawn and the assignment judge designated January 22, 1953 as the date for organizing the additional grand jury from that panel. On January 22, 1953 the State on motion challenged the array before the
jurors were sworn. Former Rule 2:4-2, now R.R. 3:3-2(a). Reasons for discharge of the panel (35 names) and of the balance of the grand jury list were assigned. The assignment judge discharged the additional grand jury panel (35 names) and set aside the balance of the then existing grand jury list. The assignment judge thereupon ordered the jury commissioners to prepare a new grand jury list of 150 names and fixed January 28, 1953 as the day for drawing a panel (35 names) therefrom for the additional grand jury. He further ordered the sheriff to return the panel of jurors so drawn from the new list on February 6, 1953, on which day the additional grand jury so summoned was organized and sworn.
On May 5, 1953 indictments, not against Messano, found by the additional grand jury were returned in open court to the assignment judge. The additional grand jury also returned in open court a presentment to the assignment judge. The presentment was examined by the assignment judge, who thereupon ordered it filed. See In re Camden County Grand Jury, 10 N.J. 23, 26 (1952).
Messano, on May 6, 1953, filed a notice of motion, without supporting affidavits, to expunge the entire presentment of the additional grand jury from the record. On argument on the motion on May 8, 1953, the assignment judge ordered Messano to produce affidavits in support of charges of bias, prejudice and malice laid to the additional grand jury by Messano on his motion. No such affidavits were filed. And counsel for Messano stated at the May 8, 1953 hearing that he had no proof that the grand jurors were politically motivated. At a hearing on the motion on June 5, 1953 counsel for Messano asserted "we are not going to file anything further. * * *" At a further hearing on June 26, 1953 counsel for Messano stated "* * * there wasn't any investigation of any grand jury. It was never my intention that that happen. * * *" By order filed November 4, 1953 the assignment judge denied Messano's motion to expunge the presentment, and this appeal ensued.
Adjective as well as substantive questions were advanced by Messano on this appeal. Messano contended, inter alia, that N.J. Const. 1947, Art. I, par. 8, forbids the simultaneous existence of two grand juries in one county. We find no merit in this contention. The constitutional provision invoked contains no such limitation. The additional grand jury is expressly authorized by statute. N.J.S. 2 A:71-5, supra. Additional grand juries were not unknown at common law. See I Chitty's Criminal Law (3 rd Am. from 2 nd London ed., revised, 1836), pp. 157 (*157-158), 310 (*311); Reg. v. McGuire, 34 N.B. 430, 434-440, 4 Can. Crim. Cas. 12, 16 (New Brunswick Sup. Ct. 1898). The remaining procedural questions related to the entire personnel of the additional grand jury resulting from the discharge of the remaining personnel of the first grand jury list and the mode pursued to acquire the new grand jury list (150 names) and in the summoning of the new panel (35 names). These remaining adjective questions become academic by virtue of the following disposition of the case.
The substantive questions revolve about the determination whether a crime was charged against ...