Ex parte Davis

• Decision Date: 10 November 1930
• Citation: 152 A. 188
• Parties: Ex parte DAVIS.
• Court: New Jersey Court of Chancery

152 A. 188

Ex parte DAVIS.^*

Court of Chancery of New Jersey.

Nov. 10, 1930.

Syllabus by the Court.

The court of chancery has power to grant a writ of habeas corpus ad subjiciendum by the common law, which is confirmed and regulated by statute, which does not create and cannot curtail that power, but comes in aid of the jurisdiction.

Syllabus by the Court.

Habeas corpus is a high prerogative writ, issued not as ordinary writs of strict right, but at the discretion of the court, and becomes one of right only when the applicant shows himself entitled to it; and it ought not to go unless the court is satisfied that the case is a proper one for its issuance.

Syllabus by the Court.

The applicant for the writ in the case at bar being indicted by a grand jury of the county of Ocean for malfeasance in office, and with another for conspiracy, bench warrants were issued for his arrest, and upon them he was taken into custody and restrained of his liberty; but this court, in the exercise of sound judicial discretion, will not grant his application for a writ of habeas corpus ad subjiciendum, as it is applied for on objections to indictments and mesne process thereon, which are addressable to the court wherein the proceedings are pending, or to the supreme court, if the cause be removed there on certiorari.

Syllabus by the Court.

Habeas corpus will not ordinarily be granted where there is another adequate remedy by appeal or writ of error or otherwise; in this case the proper means of attacking the validity of the indictments is by application to the trial court to quash them, or to the supreme court, if the case be removed there on certiorari; and if the indictments fall, the process issued thereupon falls with them.

Syllabus by the Court.

Where the court below has general jurisdiction of the cause and the person, error in the determination of the questions of law or fact upon which its jurisdiction in the particular case depends, is error in the exercise of jurisdiction, and in accordance with general rules, affords no ground for habeas corpus.

Syllabus by the Court.

Habeas corpus is a collateral attack on an indictment and process under which the accused is held; and accordingly, where the trial court had jurisdiction of the of- fense and of the person of the offender (which the court of oyer and terminer of Ocean county had), and power to render a particular judgment or sentence in a proper case (and this case undoubtedly is such), habeas corpus will not lie upon the ground of mere irregularity of the proceedings (this case not having proceeded to judgment), rendering them not void but only voidable; nor will habeas corpus issue to discharge an accused from restraint when the challenge to the jurisdiction of the court below is on the ground that the term is unlawfully continued.

Syllabus by the Court.

Habeas corpus not being a writ of error or other process of review, is not available if the judgment is merely erroneous; and it will not lie because of error or irregularity in drawing, summoning or impaneling the jury, or in discharging them.

Syllabus by the Court.

On habeas corpus the validity of an indictment will not be determined; and as the issuance of a bench warrant upon an indictment is a ministerial act, the warrant itself is one which is issued as of right on an indictment found to bring in the accused, and is not a prerogative writ.

Syllabus by the Court.

The cases of State v. Osborne, 79 N. J. Eq. 434, 82 A. 424; In re Thompson, 85 N. J. Eq. 221, 96 A. 102; In re Hall, 94 N. J. Eq. 108, 118 A. 347; Ex parte Hague (N. J. Ch.) 144 A. 546, are to be distinguished from the case at bar and are not governed by it, as this court had jurisdiction in the cases mentioned.

Application of James Mercer Davis for a writ of habeas corpus against Joseph L. Holman, Sheriff of Ocean County.

Application dismissed.

Thomas G. Haight, of Jersey City, and Charles M. Atkinson, of Camden, petitioner.

The Facts.

WALKER, Chancellor.

A petition of James Mercer Davis of Toms River, Ocean county, was presented to the chancellor, which averred that the petitioner was confined and restrained of his liberty by Joseph L. Holman, sheriff of Ocean, and that the pretence of such confinement or restraint was by virtue of certain bench warrants for arrest issued by the court of oyer and terminer of the county of Ocean, copies of which were thereto attached and made a part thereof; that the bench warrants were issued as mesne processes under and by virtue of two alleged indictments lately returned by an alleged grand jury of the county of Ocean, styling themselves the grand inquest of the April term 1930, of the court of oyer and terminer of Ocean, copies of which indictments were annexed and made a part thereof; that on the opening day of the April term, 1930, of the oyer and terminer of Ocean county, a grand jury was duly summoned, sworn and organized and entered upon the discbarge of its duties and continued to act as such until on or about the 25th of July, 1930, when eighteen members appeared before the court at Toms River, whereupon the Honorable Joseph L. Bodine, supreme court justice, in open court, discharged the grand jurors aforesaid, from further service, a copy of which session of the court was annexed thereto and made a part thereof; that on August 9, 1930, the Honorable Joseph L. Bodine, justice of the supreme court, holding the court of oyer and terminer, made an order in open court revoking the discharge of the grand jury aforesaid, and reinstating them for the balance of the April term, 1930; that at that time and place fifteen members were actually present before the court, and a copy of the proceedings of the session was thereto annexed and made a part thereof; that after August 9, 1930, and on or about September 15, 1930, and one day before the expiration of the April term of such court, the alleged grand jury which had been discharged and reinstated as aforesaid, found and returned an alleged indictment against the petitioner, alleging malfeasance in office, a copy of which indictment was attached and made a part thereof; that on or about September 15, 1930. there 'was entered in the court of oyer and terminer of Ocean a certain other order wherein and whereby it was provided that the term of such grand jury be extended until it should have announced to the court that it had finished its labors and was ready to be discharged, and that the April term of such court be continued and not terminated at the close of that day's business; such order was made by Justice Bodine holding the oyer and terminer, and Arthur Gorman Gallagher, as judge of such oyer and terminer and of the quarter sessions of Ocean county; a copy of which order was attached and made a part thereof; that on September 16, 1930, pursuant to the rules of the supreme court fixing the terms for holding the oyer and terminer and the court of quarter sessions for the county of Ocean, a grand jury for the September term (1930) of the oyer and terminer was summoned, impaneled, sworn and charged, and entered upon the discharge of its duties for the September term, which began on September 16th then instant; that on or about September 18, 1930, the alleged grand jury, which had been discharged and reinstated as aforesaid, styling themselves the grand jury of the April term, 1930, of the court of oyer and terminer, found and returned an alleged indictment against the petitioner and Eli Newmark, charging them with having made and entered into a conspiracy; a copy of such indictment was annexed and made a part thereof.

The petitioner then averred and charged that the indictments and warrants by virtue of which he was arrested and deprived of his liberty, were illegal and void, and of no effect whatsoever, for the reasons (a) that the grand jury of the April term, 1930, was regularly discharged on July 25, 1930, and thereupon ceased to be and to have any existence as a part of the court of oyer and terminer or to have any power as a grand jury of Ocean, or power to perform any of the duties or to exercise any of the powers and prerogatives of a grand jury, especially the power to find and return indictments; that the justices of the supreme court and the court of oyer and terminer are, after the discharge of such grand jury, without legal power, authority or jurisdiction to reinstate a grand jury and invest it with the powers which it had after it was summoned, sworn and organized and before its discharge; and that the attempt to reinstate the grand jury and reinvest it with the powers it had had before its discharge was null and void, and of no effect; and that, consequently, any and all indictments upon a return by the said alleged grand jury, after July 25, 1930, were null and void; (b) that the alleged order of the court of oyer and terminer, extending the term of the alleged grand jury and continuing the April term of such court after the close of September 15, 1930, was invalid and void, because the Justice and the court were without jurisdiction or power to make and enter the order; and, consequently, any indictments found and returned by that grand jury subsequent to September 15, 1930, were invalid and void; (c) that the court of oyer and terminer, and its subordinate body, the grand jury, had no jurisdiction of the subject matters contained in the indictments and of the persons therein named, and had no jurisdiction to find any indictment whatsoever or to return the same into court after July 25th, and subsequent to September 15th, 1930.

The petitioner also averred that he was unjustly restrained of his liberty by reason of the alleged indictments and warrants issued thereon and by virtue thereof, in that he had (a) been held to answer for an alleged criminal offence without a presentment or indictment by a grand jury, in violation of article 1, § 9, of the Constitution of New Jersey; and (b) deprived of his liberty without due process of...