Hobart v. First Criminal Judicial Dist. Court, 258.

• Decision Date: 18 May 1932
• Docket Number: No. 258.,258.
• Parties: HOBART, Asst. Atty. Gen v. FIRST CRIMINAL JUDICIAL DISTRICT COURT OF BERGEN COUNTY.
• Court: New Jersey Supreme Court

160 A. 674

HOBART, Asst. Atty. Gen

v. FIRST CRIMINAL JUDICIAL DISTRICT COURT

OF BERGEN COUNTY.

No. 258.

Supreme Court of New Jersey.

May 18, 1932.

Certiorari by the State, George S. Hobart, Assistant Attorney General, to review an order of the First Criminal Judicial District Court of Bergen County, suppressing as evidence and directing the return of certain liquors seized under a search warrant.

Order set aside.

Argued May term, 1931, before TRENCHARD and DONGES, JJ.

George S. Hobart, of Newark (George F. Losche, of Hackensack, of counsel), for prosecutor.

Chandless, Weller & Selser, of Hackensack, for defendant.

PER CURIAM.

This writ of certiorari brings up for review an order of the First criminal judicial district court of Bergen county suppressing as evidence and directing the return of certain liquors seized under a search warrant. The search warrant was issued on January 30, 1931, by an acting judge of said court, and charged that on December 22, 1931 (sic 1930), John Doe did sell liquor to one Sparks on the premises described. Motion was made by one Enoch Carlson to suppress the evidence and return the property under sections 26 and 27 of the Prohibition Enforcement Act (P. L. 1922, pp. 615, 621 [Comp. St. Supp. §§ 100— 291, 100—292]), and also under the constitutional provision respecting unreasonable search and seizure. The judge sitting in said court granted the motion on the ground that there was no reasonable cause for believing the existence of the grounds on which the warrant was issued, and directed the return of the property to Carlson and that its use as evidence against Carlson be suppressed. The Deputy Attorney General prosecutes this writ.

The first point argued for reversal is that the judge who made the order was without authority to do so. It appears that Charles J. McCarthy was judge of the First criminal judicial district court for the county of Bergen; that he requested in writing one J. Wallace Leyden, judge of the Second criminal judicial district court for the county of Bergen to act for him on the 30th day of January, 1931, and that said Leyden did so act; that said acting judge issued the search warrant in this case, under which certain property was seized; that Judge McCarthy requested one Dominick Marconi to sit in said court for said McCarthy on February 5, 1931, as acting judge of said First criminal court; that, notice being given of a motion to suppress the evidence and return the property taken under the warrant issued by Judge Leyden, Judge Marconi proceeded to hear said matter and made the order under review. Judge Marconi is judge of the Traffic Court of the county of Bergen.

We are of opinion that Judge Marconi was without authority to hear and dispose of the matter, and that the order made by him must be set aside.

By chapter 204, P. L. 1926, p. 337 (Comp. St. Supp. § 160—217 et seq.), criminal judicial districts in counties of this state are created and criminal courts established therein. By section 11 of the act (Comp. St. Supp. § 160—227) it is provided that it "shall be lawful for the judge of any such criminal court * * * within any other...