Jeck, In re

• Decision Date: 02 July 1953
• Docket Number: No. A--312,A--312
• Citation: Jeck, In re, 98 A.2d 319, 26 N.J.Super. 514 (N.J. Super. App. Div. 1953)
• Parties: In re JECK. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 514

26 N.J.Super. 514

98 A.2d 319

In re JECK.

No. A--312.

Superior Court of New Jersey Appellate Division.

Argued June 22, 1953.

Decided July 2, 1953.

John M. Pillsbury, Atlantic Highlands, for the State of New Jersey plaintiff-respondent (J. Victor Carton, Pros. of Monmouth County, Asbury Park, attorney).

Harry Green, Little Silver, for Myron Jeck, defendant-appellant.

Before Judges FREUND, STANTON and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C. (temporarily assigned).

Appellant, Myron Jeck, was convicted of criminal contempt following jury trial in the Law Division of the Superior Court. He now appeals, charging certain errors in the proceedings.

On January 2, 1952 Jeck became a member of the grand jury of Monmouth County and took the customary oath of office. A session of the jury was held that day.

The evidence discloses that at the time a complaint against one Eugene Capobianco, Jr. for assault and battery was awaiting action by the grand jury. While the evidence on the subject is in conflict it was open to the jury to find that Jeck knew about the complaint.

The complainant in the case was Felix Giordano. Jeck was a friend of Capobianco's father and he had known Giordano for 15 or 20 years.

On January 4, 1952 Jeck paid a call on Giordano, who apparently was still confined to his home on account of the injuries sufferred in the assult. It was described as a friendly visit, although he was not in the habit of making such visits.

While there is no dispute that the conversation got around to the pending complaint and its disposition, there is a conflict as to what was said on the subject. Giordano asserted that Jeck told him the matter had been referred to the grand jury and vigorously solicited the withdrawal of the complaint. When the request met with refusal, appellant is alleged to have said that he was a member of the grand jury and 'I don't stand for the conviction of a boy like that.'

Giordano also testified that he said to Jeck:

'If you don't stand for no conviction you better disqualify yourself. * * * If you convinced in your mind, you got it all made up for no conviction, for no indictment. * * * You better disqualify yourself.'

To which, he said, Jeck replied:

'No, I no disqualify myself.'

In addition, there was a general discussion about 'the charge, how it happened and he asked me how I was beaten.'

Corroboration of this testimony was offerred by Giordano's wife. She claimed to have heard Jeck say, 'I know they're not going to do anything to him because I'm on the Grand Jury.' and 'I'm on the Grand Jury and I don't believe in punishment for the boy.'

Appellant denied this coversation, maintaining that during the discussion about the assault he told Giordano he was on the grand jury and that since he knew both parties he was going to ask to be excused from hearing the case. And incidentally he said:

'I only know that it's a Juvenile case, and that's where it belongs, and that's where it should be handled by the Juvenile Court.'

However, the jury found that as an officer of the court he was guilty of misbehavior in his official transactions in violation of N.J.S. 2A:10--1(b), N.J.S.A., and consequently guilty of criminal contempt. As a result of the conviction a fine of $300 was imposed.

At the opening of the trial a motion was made to dismiss the complaint for criminal contempt on the ground of Autrefois convict.

In this connection it appears that after the conversation referred to, Giordano went to see the assignment judge of the county and reported the incident to him. A short time thereafter a hearing was held before this judge, at the conclusion of which an order was entered reciting that 'the Court being satisfied that said Myron Jeck is guilty of misbehavior in his official transactions as such grand juror,

'It is on this 22nd day of January 1952 ordered that Myron Jeck be and he is hereby discharged as a member of said grand jury and that his name be stricken from any future list of grand jurors in and for the County of Monmouth.

'Done this day under Revised Statutes 2:15--1 and Revised Statutes 2A:78--2 (N.J.S.A.).'

It is perfectly plain that this was not a criminal contempt proceeding. No such charge was made and no notice or order to show cause under Rule 3:80--2 was served, and no finding of criminal contempt was made. The hearing was held under N.J.S. 2A:78--2, N.J.S.A., for the purpose of obtaining an order by the assignment judge discharging Jeck from the grand jury.

Under N.J.S. 2A:78--1 and 2, N.J.S.A., a grand juror can be discharged from service only by the assignment judge or a judge designated by him. The reference in the order of discharge to R.S. 2:15--1 (which should have been to N.J.S. 2A:10--1, N.J.S.A., because the revision was then in force), which is the criminal contempt statute, was not in anywise to indicate that the action was one for contempt but simply to point to the reason for the discharge, namely, for misbehavior in his official transactions as such grand juror.

The reference to the nature of the disqualifying conduct which invoked the order was manifestly to comply with the direction of the Supreme Court in State v. Codington, 80 N.J.L. 496, 78 A. 743, 745 (Sup.Ct.1911), affirmed 82 N.J.L. 728, 85 A. 1135 (E. & A.1911).

In that case two grand jurors were discharged after being drawn but before being impaneled, the statement of the trial judge being 'for reasons best known to the Court.' When this action was attacked, Chief Justice Gummere said:

'* * * Excusing of a grand juror by the court, of its own motion, for sufficient cause, is a legitimate exercise of judicial power.'

Even where no reasons are stated, it will be assumed that they were of such a character as to justify the action, although

'Ordinarily, it is better that the reasons upon which the court acts should be publicly stated, * * *.'

An appeal was taken from the order of discharge and it was dismissed in a Percuriam opinion to the effect that the propriety of the discharge was then moot because the grand jury of which Jeck was a member had completed its term. However, the portion of the order appealed from by which his name was stricken from any future list of grand jurors, was set aside as improper because 'under N.J.S. 2A:70--2, N.J.S.A., the qualifications of jurors are determined by appropriate reviewing officers in advance of the opening of each stated court session. Accordingly, should Jeck's name appear on a future list of grand jurors, his fitness for jury service may then be considered.' In re Jeck, 22 N.J.Super. 197, 91 A.2d 614 (App.Div.1952).

The title of the matter showed that it was not a criminal contempt cause, and the opinion of the Appellate Division confirms this view. Criminal contempt is a misdemeanor--a crime. Zimmerman v. Zimmerman, 12 N.J.Super. 61, 79 A.2d 59 (App.Div.1950). No one who has been convicted of a crime is qualified to serve as a grand juror. N.J.S. 2A:69--1, N.J.S.A. If there was any indication that the proceeding before the assignment...