Colie, A.j.s.c. (temporarily assigned).
This matter is before the court on the motion of defendant Bernard B. Spindel to dismiss the complaint and the arrest of defendant upon the grounds that (1) the arrest and complaint are based upon and were instituted as a result of defendant's answers to questions by a Joint Investigating Committee of the Legislature at a time when defendant was a witness before said body, so that such answers were used against defendant in violation of N.J.S.A. 52:13-3, and (2) on the further ground that the court does not have jurisdiction over the defendant, said defendant having been arrested at a time when he was exempt from and not subject to arrest as provided in N.J.S.A. 2 A:81-21.
The facts, as gleaned from the affidavits submitted on behalf of defendant and the State, are that defendant Spindel was served on June 26, 1956 with a subpoena to appear at 10 A.M., June 29, 1956, before the Joint Legislative Committee to Study Wire Tapping and the Unauthorized Recording of Speech, hereinafter referred to as the committee. On the latter date, the committee chairman, Senator Malcolm S. Forbes, in conference with counsel to the committee, Mr. Kerby, and committee legal consultant, Mr. Cerny, "decided that the Committee still desired the benefit of Mr. Spindel's testimony and that his subpoena should be continued and adjourned from day to day until such time as Mr. Spindel could be in the State of New Jersey to testify." Prior to
September 25, 1956 Senator Forbes informed defendant "that he would be required to testify at an open hearing of the Committee in the Assembly Chambers, Trenton, N.J. on September 25." On that date Mr. Spindel appeared, was sworn and testified "* * * that in March of 1956, at the request of a chemical engineering firm located in a town adjacent to Passaic, he placed a wiretap on the telephone of said firm." The affidavit of defendant Spindel admits the acceptance of the subpoena on June 26, returnable in Atlantic City on June 29, 1956 and at any adjourned date, and that he "was advised that my subpoena was continued and adjourned * * * at a future date convenient to the Committee," that he "was advised to appear on September 25 at the State House, Trenton, New Jersey, to give testimony of my knowledge of activities of wiretapping activities in New Jersey. * * * I came into the State of New Jersey and gave testimony before the Joint Legislative Committee pursuant to the subpoena and the direction of the Committee Chairman." The affidavit of Russell T. Kerby, Jr. confirms the service on June 26 of a subpoena upon defendant, returnable June 29; that Senator Forbes, Mr. Cerny and Mr. Kerby "* * * declared that the Committee still desired the benefit of Mr. Spindel's testimony and that his subpoena should be continued and adjourned from day to day until such time as Mr. Spindel could again be in the State of New Jersey to testify." The affidavit of Mr. Cerny mainly sets up alleged facts about which he lacked personal knowledge, except in one respect. It states: "Inasmuch as Mr. Spindel did not appear at said hearing, Senator Forbes, Mr. Kerby and I decided that his subpoena should be continued and that he should be directed to appear at another hearing as soon as reasonably possible thereafter."
The proceedings before the committee on September 25 have not been produced before the court, but the affidavit of Charles S. Joelson, Deputy Attorney-General and Acting Prosecutor of Passaic County, states that at the morning session on September 25 Senator Forbes said: "Now the Committee would like to ask Mr. Bernard Spindel if he
could demonstrate to us some of the methods of tapping wires. Mr. Spindel's only connection with this Committee is that we've heard he has an extensive knowledge in the field of wiretapping and that he has consented to assist the Committee by putting on this demonstration this morning of various ways and means of doing it * * *," and at the afternoon session the following colloquy took place:
"Mr. Richman: This witness has already testified as to certain illegal activities on his part in this State.
Mr. Forbes: You are aware, I think, of the Statute under which witnesses testify before this Committee.
Mr. Richman: May I ask him, Mr. Chairman, is he under subpoena.
Mr. Kerby: No, no subpoena has been issued to ...