In re Longo, 52.

• Decision Date: 25 January 1940
• Docket Number: No. 52.,52.
• Citation: 124 N.J.L. 176,11 A.2d 33
• Parties: In re LONGO.
• Court: New Jersey Supreme Court

11 A.2d 33

124 N.J.L. 176

In re LONGO.

No. 52.

Court of Errors and Appeals of New Jersey.

Jan. 25, 1940.

Appeal from Supreme Court.

Proceeding in the matter of the application of John R. Longo to the New Jersey Supreme Court for a writ of certiorari to review an order denying a new trial in a criminal case. Judgment denying the application, 122 N.J.L. 108, 4 A.2d 15, and applicant appeals.

Appeal dismissed.

Isserman, Isserman & Kapelsohn, of Newark (Vito Marcantonio, of New York City, and Abraham J. Isserman, of Newark, of counsel), for appellant.

Daniel O'Regan and Atwood C. Wolf, both of Jersey City, for the State.

PERSKIE, Justice.

Appellant, John R. Longo, seeks to review the order of the Supreme Court which denied his application for a writ of certiorari to review an order allegedly entered in the Hudson County Court of Quarter Sessions which in turn denied his application to that court for a new trial on the alleged ground of newly discovered evidence. At the outset, we desire to make certain observations concerning the record as submitted. No copy of the order allegedly entered in the Hudson County Court of Quarter Sessions is made to appear; the copy of the order submitted (Schedule C, p. 51, S.C.) is captioned in the Hudson County Court of Common Pleas; that court has no criminal jurisdiction. R.S. 2:6-6, N.J.S.A. 2:6-6. But since the parties have treated the order as if in fact it had been entered in the Hudson County Court of Quarter Sessions, we shall so regard it. The record is, however, otherwise fatally defective; it contains no transcript of the proofs which were adduced upon the examination of the jurors upon their voir dire, although these proofs are necessarily determinative of the propriety of the challenged order made by the trial judge. But be that as it may, we proceed with our consideration and disposition of this cause upon the record as submitted by the parties.

From the record so submitted, from the affirmance of appellant's conviction (more as to this later), we piece together, as best we can, the facts upon which appellant asserts that the denial of his application for a new trial, the denial of a writ of certiorari to review that denial, constitute an abuse of discretion on the part of both courts and ergo the denials are tantamount to an invasion of his fundamental rights to a trial by an impartial jury both under the Federal and State Constitution.

Epitomizing the facts so gathered, we learn that the Hudson County Grand Jury (December Term, 1937) returned an indictment (No. 109) against appellant charging him with the violation of the provisions of R.S. 19:34-2, N.J.S.A. 19:34-2, in that he filed a Democratic Party primary nominating petition knowing that the same was falsely made, etc. (Source, sec. 434, ch. 187, P.L.1930, p. 878),

In due season, April 8, 1938, the sheriff and jury commissioner of Hudson County drew 204 names from the master panel of 1,224 names of prospective jurors for the April, 1938, term of court. The 204 so chosen were to serve in the several courts of the county for a two-week period during the stated term, beginning on April 19, 1938. Pursuant to order of court, the first 102 jurors of the 204 jurors drawn were to serve in the criminal courts and the remaining 102 were to serve in the civil courts. The list of the names so drawn was promptly filed in the County Clerk's office and available to appellant, and all others in interest. Thus appellant and his counsel were afforded every opportunity before trial to make inquiry and gain information which they required for the purpose of making peremptory challenges and challenges for cause. Cf. Clifford v. State, 61 N.J.L. 217, 223, 39 A. 721; State v. Palmieri, 93 N.J.L. 195, 199, 107 A. 407.

At the outset of the trial, which commenced on April 27, 1938, at the Hudson County Court of Quarter Sessions, appellant interposed a general challenge against all prospective jurors on the ground of bias and prejudice. Notwithstanding the general ground of the challenge, the trial judge allowed counsel for appellant to examine each juror on his voir dire. That testimony is not before us. We do, however, know that the trial judge correctly held that counsel for appellant improperly asked each juror whether (a) he participated in the last primary election, and (b) whether he was a member of any political organization. See State v. Longo, 121 N.J.L. 427, 3 A.2d 127. We also know that there is nothing in the record as submitted to indicate any dissatisfaction with the personnel of the jury as finally selected.

Appellant's trial ended on May 7, 1938. He was found guilty as charged and has since served the sentence of nine months' imprisonment which was imposed upon him.

From that judgment of conviction appellant appealed to our Supreme Court. In that case he argued, inter alia, that his conviction should be set aside because the trial judge fell into reversible error when he sustained the objection to the aforesaid two questions propounded to each juror upon his examination voir dire. The Supreme Court concluded the point to be without merit. In reaching that conclusion it said—in part?" * * * Mere membership in the democratic party and participation in the primary election would hardly indicate bias or prejudice against one accused of filing a nomination petition for primary election knowing the same to be falsely made. * * * Since most of the citizens of this state are members of one or the other of the leading political parties, we fail to see how a jury could be impaneled to try a violation of the election law if mere membership in one or the other of the political parties should be regarded as evidence of bias and prejudice in the performance of a public duty." Accordingly, the Supreme Court, on December 22, 1938, affirmed appellant's conviction. State v. Longo, supra. From that affirmance there has been no appeal.

Bearing in mind what has already been written, we now turn to the verified petition, etc., which appellant filed in the Hudson County Court of Quarter Sessions, on June 1, 1938, in support of his application for a new trial on the alleged ground of newly discovered evidence. That evidence is largely, if not entirely, based upon an investigation which appellant says he caused to be made, after his trial and conviction, concerning the alleged bias or prejudice of the jurors who sat in judgment in this cause. Cf. Plaskon v. National Sulphur Co., 114 N.J.L. 109, 110, 176 A. 112; Paradise v. Great Eastern Stages, Inc., 114 N.J.L. 365, 367, 176 A. 711.

Generally stated, the petition alleges, in substance, that appellant opposed "within the Democratic Party in Hudson County" the major faction of that party in control; that as a result thereof he "incurred the enmity" of that faction, and that each of four jurors who sat in judgment in this case gave false answer when examined upon his voir dire. The false answer in one instance is said to be that a juror denied that he was related "to any public officer"; in another instance, that one of the jurors denied that he had any relatives who were "officers of the county"; in another instance, that one of the jurors denied that he had any relatives who were "public officials in the city or county"; and in one instance, that one juror falsely testified as to his place of employment.

Additionally, the petition alleges that each of five other jurors who likewise sat in judgment in this case also failed to disclose the fact that each had close friends or relatives who either held office, position or employment under administrative bodies of Jersey City or Hudson County; that as a result thereof they were so biased and prejudiced against appellant that they could not possibly render an honest or legal verdict against him.

In answer to these allegations, the State produced an answering...