On motion to dismiss indictment.
The defendants stand indicted for murder. At the time of commission of the alleged offense, each was 17 years of age. They now move the court to dismiss the indictment for the following reasons:
1. The failure of the Juvenile Court to conduct a preliminary hearing prior of its referral of the complaint to the county prosecutor.
2. Deprivation of the right to a preliminary hearing before a magistrate, following referral of the complaint to the county prosecutor.
It is urged that the denial of preliminary hearing in the Juvenile Court was particularly hurtful in this case because of the alleged unlawful detention of the defendants by the police authorities, during which detention there were obtained confessions which constitute the only evidence connecting
the defendants with the homicide described in the indictment.
First, as to the proceedings in the Juvenile Court.
The record reveals that when the defendants appeared before that court on July 3, 1958 it was on a complaint that they had committed a murder in the course of perpetrating a robbery. The judge read the complaint aloud, and then read aloud R.R. 6:9-7, which provides, in part, that the judge "may at any time before final disposition refer the entire cause to the prosecutor * * * where the juvenile is over the age of 16 years, and is an habitual offender or the offense charged is of such a heinous nature that for the protection of society the matter should be handled as an adult criminal offense." Though besought by defendants' counsel to conduct a hearing, the judge did not do so but announced that because of the heinous nature of the offense and because of the fact that the court records indicated that the defendants were habitual offenders he would refer their cases to the county prosecutor in the interest of the welfare of society.
It is argued that such a summary disposition may not be lawfully made, since the operation of R.R. 6:9-7 is so affected by other rules governing the conduct of the court that a hearing must be accorded a defendant before referral may be made. But, even paramount to the reasoning based on the context of the Juvenile Court rules, is the a fortiori conclusion that a juvenile offender is certainly entitled to no less than is accorded an adult offender by R.R. 3:2-3(c), which provides for preliminary examination before a magistrate of the evidence in support of a criminal complaint made against an adult.
The difficulty with the latter contention is that R.R. 3:2-3(c) has not been incorporated by reference into the scheme controlling the hearing of cases involving juvenile offenders, whereas, it has been expressly made applicable to the complaint stage of proceedings against adult offenders in the Juvenile and Domestic ...