State v. Riggs

• Decision Date: 03 March 1919
• Docket Number: No. 31-34.,31-34.
• Citation: 106 A. 467
• Parties: STATE v. RIGGS et al. (three cases). SAME v. JOHNSON et al.
• Court: New Jersey Supreme Court

106 A. 467

STATE

v. RIGGS et al. (three cases).

SAME

v. JOHNSON et al.

No. 31-34.

Court of Errors and Appeals of New Jersey.

March 3, 1919.

(Syllabus by the Court.)

John A. Riggs and others, as directors of the Trenton Street Railway Company, were prosecuted on three indictments for obstructing certain public streets in the city of Trenton. Prom a judgment of the Supreme Court (106 Atl. 216), quashing the indictments, the State brings error. Writs of error dismissed.

Rankin Johnson and others were indicted for obstructing public streets in the city of Trenton. Prom a judgment of the Supreme Court (106 Atl. 216), quashing the indictment, the state brings error. Writ of error dismissed.

Martin P. Devlin, of Trenton (A. Dayton Oliphant, Prosecutor of the Pleas, of Trenton, on the brief), for the State.

Prank S. Katzenbach, Jr., and Scott Scammell, both of Trenton, for defendants in error.

PARKER, J. It is sought by these writs of error to review the action of the Supreme Court in quashing four indictments found in the Mercer oyer and terminer, the substance of which appears in the opinion of the Supreme Court. The indictments were removed by writs of certiorari into the latter court at the instance of the defendants, for the purpose of obtaining the ruling of that court as to their legal sufficiency, and were ordered quashed for reasons stated in the opinion below. The state then took out writs of error.

On the call of the calendar in this court a motion was made to dismiss the writs of error on two grounds: First, because the granting or denial of such a motion is a matter of judicial discretion, not reviewable on writ of error; and, secondly, because the action of the court in quashing an indictment does not amount to a final judgment. Decision was reserved, and the cases were subsequently argued on the merits.

1. The authorities in this state, with perhaps one or two exceptions, are uniform in holding, first, that the granting or refusal of such a motion, whether in the court of first instance or in the Supreme Court, is a matter of judicial discretion. In State v. Hageman, 13 N. J. Law, at pages 322, 323 (1833), Chief Justice Hornblower, speaking for the Supreme Court, said:

"It is a matter of discretion whether an indictment shall be quashed in any case; it is not ex debito justitiae."

In State v. Dayton (1850) 23 N. J. Law, 19, 52 (53 Am. Dec. 270), Chief Justice Green said:

"It is in all cases a matter of discretion whether the court will quash an indictment, or put the party to his plea or demurrer, or leave him to a motion in arrest of judgment."

This he repeated in State v. Beard, 25 N. J. Law, 384 (1850).

In State v. Black (1890) 20 Atl. 255, not officially reported, but affirmed without opinion in 53 N. J. Law, 462, 23 Atl. 1081, Chief Justice Beasley said the granting of such a motion was a matter of discretion.

These utterances of two of our most distinguished jurists have been consistently followed in a long line of cases, some of which follow: Proctor v. State, 55 N. J. Law, 472, 26 Atl. 804; Parks v. State, 62 N. J. Law, 664, 43 Atl. 52; State v. Hoffman, 71 N. J. Law, 285, 58 Atl. 1012; State v. Meeker, 72 N. J. Law, 210, 61 Atl. 381 (in this court); State v. Johnson, 82 N. J. Law, 330, 332, 81 Atl. 657; State v. Sweeten, 83 N. J. Law, 364, 85 Atl. 309; State v. Merkle, 83 N. J. Law, 677, 686, 85 Atl. 330; State v. Plsaniello, 88 N. J. Law, 262, 265, 96 Atl. 89 (the last two in this court); State v. Plough, 88 N. J. Law, 425, 97 Atl. 64 (in the Supreme Court). The decisions are based on the common-rule, which will be found in 1 Chitty, Criminal Law, 299; 1 Bishop's New Criminal Procedure, § 758; 22 Cyc. 413.

2. It is also an accepted general rule that the discretionary action of a criminal court will not be reviewed on strict writ of error. Moschell v. State, 53 N. J. Law, 498, 500, 22 Atl. 50; s. c. 54 N. J. Law, 390, 25 Atl. 964; Clark v. State, 57 N. J. Law, 489, 31 Atl. 979; s. c. 58 N. J. Law, 383, 34 Atl. 3; State v. Jaggers, 71 N. J. Law, 281, 283, 58 Atl. 1014, 108 Am. St. Rep. 746; State v. Valentina, 71 N. J. Law, 552, 60 Atl. 177; State v. Metzger, 82 N. J. Law, 749, 82 Atl. 330.

In Moschell v. State, supra, 53 N. J. Law. 498, 22 Atl. 50, in the Supreme Court, affirmed without opinion in 54 N. J. Law, 390, 25 Atl. 964, Justice Magie reiterated the rules that a motion to quash is directed to the discretion of the court, and that error will not lie on matters resting in discretion, a proposition which, he said, was universally admitted. The court in that case considered the validity of the indictment in error but avowedly did so by passing the question, not fully argued, whether the provisions of section 53 (now section 44 [2 Comp. St. 1910, p. 1834]) of the Criminal Procedure Act might not effect some change in the common-law rule; and as the court was of opinion that the indictment was good, it took the simpler course of so ruling, without going into a question insufficiently presented. But any doubt on the question whether section 44 of the Criminal Procedure Act gave the motion to quash a force corresponding to a motion in arrest of judgment has been settled against that theory by later cases presently to be considered. The two general rules just stated should therefore be considered as long since entirely settled.

3. Prom these rules as premises it necessarily follows that a motion to quash an indictment for insufficiency is not reviewable on strict writ of error; and so it has been held, as to the denial of such a motion, subsequently to the Moschell Case, in State v. Meeker, 72 N. J. Law, 210, 61 Atl. 381; State v. Merkle, 83 N. J. Law, at page 686, 85 Atl. 330; State v. Siciliano, 85 N. J. Law, 389, 91 Atl. 988; State v. Pisaniello, 88 N. J. Law, 262, 96 Atl. 89. All are decisions of this court.

Incidentally it may be noted that section 136 of the Criminal Procedure Act gives a right of review to the defendant of discretionary rulings at the trial, where the error has prejudiced the defendant in maintaining his defense upon the merits. 2 C. S. p. 1863; State v. Hatfield, 66 N. J. Law, 443, 49 Atl. 515; State v. Brown, 72 N. J. Law, 354, 60 Atl. 1117; State v. Lieberman, 80 N. J. Law, 506, 79 Atl. 331; State v. Bacheller, 89 N. J. Law, 433, 98 Atl. 829. This exception is a legislative recognition of the general rule; and in cases where the discretionary action did not occur at the trial, review under section 136 has been denied. State v. Van Stavern, 67 N. J. Law, 235, 51 Atl. 689 (denial of a new trial); State v. Pisaniello, supra (refusal to quash indictment).

On the precise point, whether the granting of a motion to quash may be reviewed by writ of error or certiorari sued out by the state, the decisions are few. So far as this court is concerned, there is no writ of certiorari as a review of the proceedings of inferior courts, but the writ of error does duty when necessary as a certiorari. Eames v. Stiles, 31 N. J. Law, 490. Consequently the question whether a review, if permitted, should be by one or the other procedure, does not arise in this case. The real question is whether the discretionary action of the lower court in quashing an indictment can be reviewed at all.

In the early case of State v. Webster, 10 N. J. Law, 293, the point was not made, the question in the mind of the court being apparently whether certiorari was a proper method of bringing the indictment into the Supreme Court after it had been quashed. This case was decided in 1829, several years before State v. Hageman, the first case cited herein.

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