Parks v. State
| Decision Date | 06 March 1899 |
| Parties | PARKS v. STATE. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to supreme court.
Charles Parks was indicted for crime, and on refusal to quash the indictment (39 Atl. 1023) brings error. Dismissed.
Edward Wilson and Frederic W. Ward, for plaintiff in error.
Wilbur A. Heisley, for the State.
The assignment of errors in this case is solely directed to the refusal of the supreme court to quash an indictment removed into that court by a certiorari to the Monmouth county sessions. An examination of the so-called "record," returned with this writ of error, discloses that the supreme court denied the motion to quash the indictment, and ordered the record brought before it by the certiorari to be remitted to the sessions, to be proceeded in according to law. By the provisions of section 6 of the certiorari act (1 Gen. St. p. 368), the supreme court had authority, at its discretion, either to retain the record for trial in the proper circuit court, or to remit the record to the court from which it was removed, to be there proceeded on. The motion to quash is one addressed to the discretion of the court, and not ex debito justitiæ. State v. Hageman, 13 N. J. Law, 314; State v. Dayton, 23 N. J. Law, 49; Proctor v. State, 55 N. J. Law, 472, 26 Atl. 804. (Whether, after final judgment, an assignment of error may be directed to a refusal to quash an indictment, when no demurrer or motion in arrest of judgment, which would have presented the question of the sufficiency of the indictment on the record, has been Interposed, has been mooted, but not decided.) Moschell v. State, 53 N. J. Law, 498, 22 Atl. 50; Mead v. State, 53 N. J. Law, 601, 23 Atl. 264. It is not presented in this case, and no opinion is expressed thereon; for the case before us shows that there is nothing on which this court can act. A writ of error cannot be sued out until final judgment. Cooper v. Vanderveer, 47 N. J. Law, 178. When a writ of error removed a judgment of a circuit court into the supreme court, the judgment of the latter court, reversing that of the circuit and remitting the cause for further proceedings according to law, has been held by us to be a final judgment, reviewable by writ of error, on the grounds that, by the writ of error, a new suit was instituted, the judgment wherein was final, and that the substantial matter involved was the legality of the original judgment, which was a final...
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State v. Narushef
... ... 1936): 'The rule is that the discretion to quash an indictment will not be exercised unless upon the clearest and plainest ground, * * *. That principle of law which the Supreme Court has set up for its own guidance applies with quite as much force to the sessions.' ... Cf. Parks v. State, 62 N.J.L. 664, 43 A. 52 (E. & A. 1899); State v. Hoffman, 71 N.J.L. 285, 286, 58 A. 1012 (E. & A. 1904); State v. Riggs, 92 N.J.L. 575, 106 A. 467 (E. & A. 1919); State v. Shipley, 10 N.J.Super. 245, 250, 77 A.2d 38 (App.Div. 1950). The burden is upon the defendant to establish that the ... ...
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... ... The final judgment from which this Court would hear an appeal would be that entered upon the verdict after a trial under the indictment. This is the practice as laid down by this Court. Cf. Parks v. State, 62 N.J.L. 664, 43 A. 52; State v. Greenwald, 66 N.J. L. 686, 50 A. 440; State v. Meeker, 72 N.J.L. 210, 61 A. 381; State v. Kelsey, 82 N.J.L. 542, 82 A. 13; State v. Riggs, 92 N.J.L. 575, 106 A. 467; Hartranft v. Mullowny, 247 U.S. 295, 296, 305, 38 S.Ct. 518, 62 L.Ed. 1123 ... ...
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State v. Stasak
... ... A motion to quash an indictment is a motion addressed to the discretion of the court and not ex debito justitise. State v. Hageman, 13 N. J. Law, 314; State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; Proctor v. State, 26 A. 804, 55 N. J. Law, 472; Parks v. State, 43 A. 52, 62 N. J. Law, 664. In order for a defendant to avail himself of a defect in the indictment a motion to quash must be made before the jury is sworn. Mead v. State, 23 A. 264, 53 N. J. Law, 601. It was there held that, if no objection has been made to an indictment before the ... ...