[166 NJSuper Page 571] Defendants Reynolds and Rochelle have moved to dismiss the indictment on the ground that the
indictment was returned by a grand jury the majority of whose members did not hear all of the evidence presented.
Indictment 1706-77 handed up on August 17, 1978 charges defendants Lehman, Reynolds and Rochelle with murder, N.J.S.A. 2A:113-1, N.J.S.A. 2A:113-2, counts one, two and three, respectively. Count four charges defendant McDonald with aiding and abetting a murder, N.J.S.A. 2A:85-14, N.J.S.A. 2A:113-1, N.J.S.A. 2A:113-2. Count five charges defendant Lehman with atrocious assault and battery, N.J.S.A. 2A:90-1. Count six charges defendant Reynolds with atrocious assault and battery, N.J.S.A. 2A:90-1.
Upon motion of defense counsel the court personally examined the grand jury vote tallies and attendance sheets for the grand jury that returned the indictment. See State v. Coffee , 56 Conn. 399, 16 A. 151, 152 (Sup. Ct. Err. 1888). Evidence was considered on three separate days. Fifteen grand jurors voted for the indictment. Two of those voting were absent during the presentation of evidence on one date; three, on another date. Four grand jurors were involved, one being absent on both dates. It affirmatively appears, therefore, that of the 15 grand jurors voting this indictment, only 11 actually were present each time relevant evidence was presented. Defendants argue that the indictment must be dismissed because the evidence was not heard by 12 grand jurors and the indictment returned by those 12 grand jurors.
N.J. Const. , Art. I, para. 8, provides: "No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, * * *." A grand jury shall be composed of not more than 23 individuals. N.J.S.A. 2A:73-1. See also, R. 3:6-1. At least 12 grand jurors must vote to indict. State v. McFeeley , 134 N.J.L. 463, 465 (Sup. Ct. 1946); R. 3:6-8(a). See also, 31 N.J. Practice (Arnold, Criminal Practice and Procedure , 1976), § 349.
An indictment should be dismissed only on the clearest and plainest grounds. State v. Suit , 129 N.J. Super. 336, 339 (Law Div. 1974). Conversely, an indictment should not be dismissed unless its insufficiency is palpably shown. State v. McDowney , 49 N.J. 471, 474 (1967); State v. LaFera , 35 N.J. 75, 81 (1961). In considering a motion to dismiss, a court should exercise discretion so as not to be arbitrary, vague or fanciful, but rather should act in accordance with established principles of law. State v. Silverstein , 76 N.J. Super. 536, 540 (App. Div. 1962), aff'd 41 N.J. 203 (1963).
In speaking to the nature and purpose of the grand jury in this country, the United States Supreme Court has stated in Wood v. Georgia , 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962):
Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will * * *. [at 390, 82 S. Ct. at 1373]
See also, United States v. Dionisio , 410 U.S. 1, 17, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); Ex Parte Bain , 121 U.S. 1, 11, 7 S. Ct. 781, 30 L. Ed. 849 (1887).
Although research has disclosed no case directly on point in this jurisdiction, the issue was considered in United States ex rel. McCann v. Thompson , 144 F.2d 604 (2 Cir.), cert. den. 323 U.S. 790, 65 S. Ct. 313, 89 L. Ed. 630 (1944). Judge Learned Hand stated:
See also, Lustiger v. United States , 386 F.2d 132, 139 (9 Cir. 1967), cert. den. 390 U.S. 951, 88 S. Ct. 1042, 19 L. Ed. 2d 1142 (1968); United States v. Armour & Co. , 214 F. Supp. 123, 124 (D. Ct. Cal. 1963). Cf. Abbott v. Superior Court of Pima County , 86 Ariz. 309, 345 P. 2d 776 (Sup. Ct. 1959); People v. Brinkman , 205 Misc. 337, 126 N.Y.S. 2d 495 rev'd 286 App. Div. 889, 142 N.Y.S. 2d 389 aff'd 309 N.Y. ...