For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling and Jacobs. For reversal -- Justices Heher, Oliphant and Brennan. The opinion of the court was delivered by Vanderbilt, C.J. William J. Brennan, Jr., J. (dissenting).
This is an appeal from the judgment of the Burlington County Court convicting the defendant of the crime of false swearing. The defendant appealed to the Appellate Division of the Superior Court and we certified the appeal on our own motion while it was pending there.
1. The defendant was indicted and tried on a charge that he had sworn falsely when he gave certain testimony to the grand jury which later indicted him. Both before the trial and during the course of the trial the court denied several motions to dismiss the indictment on the grounds that the grand jury which indicted the defendant had no legal existence and that it had no power to indict the defendant for false swearing. The question as to the power of the grand jury in question to indict the defendant will be first considered.
The grand jury of Burlington County for the second stated session of the September 1951 term was inducted into office on January 3, 1952. Its original and normal term of 20 weeks expired on May 6, 1952. On April 4, 1952, within its original term, the grand jury was specially charged by the assignment judge "concerning alleged violations of the gambling laws in Burlington County and misconduct in office of certain public officials in connection therewith." When it became apparent to the grand jury that it could not complete its investigation before the expiration of its term, the grand jury through its foreman petitioned the assignment judge for the entry of an order pursuant to Rule 2:4-8 (Now R.R. 3:3-10) continuing the term of the grand jury for a period of three months beyond the expiration of the time it would ordinarily have ceased to function. On May 2, 1952 the assignment judge, after referring to the substance of his special charge as quoted above, made an order that
"the term of the Second Stated Session, September Term, 1951, Grand Jury now sitting in and for the County of Burlington be
and the same is hereby continued for a period of three months from the 6th day of May, 1952, when said Grand Jury would ordinarily cease to function, and
It is further Ordered that during the continuation of the term as herein provided the said Grand Jury shall have the same power to act in relation to the aforesaid incompleted matters as if the term for which it was originally inducted into office had not expired."
Subsequently, on the successive presentation of three similar petitions to the assignment judge, he extended the term of the grand jury ultimately to May 6, 1953.
On March 20, 1953, during the last period of the grand jury's extended term, the defendant who was then the municipal judge of the Town of Mansfield but not a member of the bar, appeared before the grand jury in question and gave testimony, and on April 16, 1953 it presented an indictment against him in four counts, alleging that the answers given to some questions put to the defendant were false and charging him with violation of N.J.S. 2 A:131-4. At the trial held about a year and a half later the first two counts were eliminated because no evidence was produced to support them. The third count charged that the negative answers given by the defendant to the questions whether he had ever received any money from one George Page, whether he had ever had any discussion with Page concerning Trooper John Reese, and the latter's receiving money for protection purposes, whether he had ever had any conversation with Page concerning Trooper Skok, and whether he had any conversation with Page concerning the operation of a floating crap game in Burlington County, were all false. The fourth count charged that the negative answer given by the defendant to the question whether he knew one Joseph Girgenti was also false.
The defendant here was one of 17 persons separately indicted for the crime of false swearing before this continued grand jury. After the indictments were presented against these other persons some of them moved before the County Court to dismiss the respective indictments against them and a similar motion was made on behalf of the defendant before the assignment judge, but by agreement the parties did not
argue the motion and stipulated to become bound by the decision made by the county judge on the motions in the other cases. The County Court denied the motions in the other cases, and the persons who had moved before him sought leave to appeal to the Appellate Division of the Superior Court, which denied such leave in State v. Peterman, 29 N.J. Super. 236 (App. Div. 1953).
The first point of argument by the defendant seeks to show that the grand jury that indicted him did not legally exist. The defendant contends that at common law the life of a grand jury ceased with the expiration of the term of court for which it was summoned and that the term of service of a grand jury could only be continued beyond that time if authorized by statute. He attempts to build up the contention that the continuation of a grand jury after its normal expiration is an act which enlarges the power and authority of that body, i.e., an act creating additional rights and therefore a matter of substantive law. In doing so he is thus attempting to add weight to his later contention that the rule-making power of the Supreme Court did not include the power to make rules governing substantive matters, an argument which has never been questioned, Winberry v. Salisbury, 5 N.J. 240 (1950), and that therefore the Rule 2:4-8 (now R.R. 3:3-10) was invalid. The only case that he cites on this point is State v. Davis, 107 N.J.L. 199 (Sup. Ct. 1930), which held that the statute providing for the selection of the grand jurors did not authorize the Court of Oyer and Terminer, or even a justice of the former Supreme Court, to continue in office a grand jury empaneled for a specified term after that term had expired and a new grand jury had been empaneled. He recognizes that in 1939 statutes were passed authorizing such extensions, which became N.J.S.A. 2:88-26, 27 and 28. He says, however, when Title 2 was revised in January 1952, N.J.S.A. 2:88-26, 27 and 28, supra, were not reenacted and therefore we are without statutory authority to continue the existence of a grand jury after the expiration of its term. He denies that the Constitution of 1947, Art. VI, Sec. II, par. 3, giving the
Supreme Court the power to make rules governing the administration, practice and procedure in the courts, Winberry v. Salisbury, 5 N.J. 240 (1950), supra, covers the power in issue, because the grand jury, he contends, is not part of the courts intended to be so controlled. The authorities, however, all do not bear him out.
The question reduces itself to whether the grand jury is part of the court. Of this it seems there is no doubt. In In re Schwartz, 133 N.J.L. 79, 84-85 (Sup. Ct. 1945), reversed on other grounds 134 N.J.L. 267 (E. & A. 1946), the court of last resort approved the expression of the law "that the grand jury is an arm of the court, the proceedings by it are to be regarded as proceedings in the court, and that contempts in the presence of the grand jury are to be treated as taking place in the presence of the court." In O'Regan v. Schermerhorn, 25 N.J. Misc. 1, 19-20 (Sup. Ct. 1946), Supreme Court Commissioner, later Mr. Justice Ackerson, after citing many authorities, said:
"The grand jury, at common law, is an arm of the court and acts for the court under which it is organized, and its proceedings are regarded as proceedings in the court. * * * Its members are officers of the court and exercise functions of a judicial nature and its proceedings are judicial. * * *"
The conclusion that "The grand jury is an arm of the court -- a judicial body -- and its members are officers of the court," was reiterated in In re Jeck, 26 N.J. Super. 514, 519 (App. Dir. 1953), certification denied 13 N.J. 429 (1953). In re Camden County Grand Jury, 10 N.J. 23, 64 (1952); United States v. Smyth, 104 F. Supp. 283, 291 (D.C.D. Cal. 1952); Application of United Electrical Radio & M. Workers, 111 F. Supp. 858 (D.C.D.N.Y. 1953); Application of Iaconi, 120 F. Supp. 589 (D.C.D. Mass. 1954); Hitzelberger v. State, 173 Md. 435, 196 A. 288 (Ct. App. 1938); Commonwealth v. McNary, 246 Mass. 46, 140 N.E. 255, 256, 29 A.L.R. 483 (Sup. Jud. Ct. 1923); People v. Trieber, 163 P. 2 d 492, 497 (Cal. App. 1945), subsequent opinion 28 Cal. 2 d 657, 171 P. 2 d 1 (1946); State ex rel. Hall v. Burney,
229 Mo. App. 759, 84 S.W. 2 d 659, 664 (Ct. App. 1935); Fryer v. State, 146 Ala. 4, 41 So. 172, 173 (Sup. Ct. 1906); State v. McClure, 325 Mo. 1228, 31 S.W. 2 d 39, 42 (Sup. Ct. 1930); People v. Naughton, 7 Abb. Prac., N.S., 421, 423 (N.Y.O. & T. 1870); People v. Duff, 65 How. Prac. 365, 369 (N.Y.O. & T. 1883). Cf. People v. Sweeney, 213 N.Y. 37, 106 N.E. 913, 916 (Ct. App. 1914); People v. Sexton, 187 N.Y. 495, 80 N.E. 396, 402 (Ct. App. 1907).
The defendant cites no authority for his contention that the extension of the time of a grand jury is a matter of substance rather than of procedure, and his argument that the grant of such power to the courts in 1939 was substantive, N.J.S.A. 2:88-26, 27 and 28, supra, and the failure to reenact it in passing Title 2 A in 1952 stripped the courts of their power to extend the time of a grand jury, flies in the face of common knowledge of what the Legislature was doing. In repealing Titles 2 and 3 and enacting Titles 2 A and 3 A the Legislature was stripping the statute book of procedural matters. As we said in State v. Otis Elevator Co., 12 N.J. 1, 18 (1953):
"Sensing the undesirability of the comingling of substantive and procedural law in Title 2 of the Revised Statutes dealing with the administration of civil and criminal justice and in Title 3 dealing with the administration of estates, the Legislature in June 1950 appointed an Advisory Committee on the Revision of Statutes (L. 1950, c. 171) to revise these two titles * * * and to delete the procedural matter therein, and on December 5, 1951 it enacted the recommendations of its Advisory Committee as Titles 2A and 3A of the Revised Statutes (L. 1951, cc. 344, 345)."
In 1953 the procedural provisions in the other 56 titles on the statute book were deleted by the Legislature, chapters 4 through 57, Laws of 1953, and thereupon this court revised its Rules of Court effective September 9, 1953, including among many others, R.R. 3:3-10, in question here, providing for the continuance of terms of a grand jury. In promulgating its Revised Rules this court said:
"By far the bulk of the amendments and additions to the rules, however, has been necessitated by the legislative revision in 1951
of Titles 2 and 3 of the Revised Statutes and in 1953 of the remaining Titles of the Revised Statutes so as to delete from the statutes matters of practice and procedure."
The whole program was procedural, not substantive, and in the light of the legislative history it is idle to contend that the Legislature ever held the view that the power to make rules respecting the continuance of terms of a grand jury was substantive in nature, see Foreword to Title 2 A by Judge Clapp.
2. The defendant next contends that even assuming that the grand jury was duly constituted the indictment found is invalid because by its extended authority the grand jury only had the power to file indictments based on a violation of a gambling statute or alleging ...