State v. Borg

• Decision Date: 03 May 1930
• Citation: 150 A. 189
• Parties: STATE v. BORG et al.
• Court: New Jersey Supreme Court

150 A. 189

STATE

v. BORG et al.

Supreme Court of New Jersey.

May 3, 1930.

Certiorari proceeding by John Borg and another against the State for the purpose of moving to quash an indictment and motion to require a member of the grand jury to answer certain questions.

Application denied with respect to members of grand jury and those associated with them in the administration of justice, and dismissed without prejudice as to others.

Before PARKER, J., at Chambers.

Edward O. West, of Hackensack, and Andrew O. Wittreich, of Jersey City, for the State.

Robert Carey and Harry Lane, both of Jersey City, for prosecutors.

PARKER, J.

The indictment was, removed to this court by certiorari in view of sworn allegations that the grand jury had been illegally chosen, that they had been subjected to improper influences, and that they had found the indictment without evidence, and that they had been guilty of misconduct in their deliberations. The present motion is addressed mainly to the last point. During the taking of depositions on the part of the prosecutors, a member of the grand jury was sworn as a witness, and was asked whether at a certain session of the grand jury he did not vigorously protest against the finding of the indictment on the ground that there was no evidence to warrant it, and that it was an entirely improper and irregular partisan procedure. This question led to a heated argument between counsel, and finally the witness stated in substance that, while he would like to answer it, he felt that the oath of secrecy taken by him when sworn as a grand juror forbade him to do so, although, if competent judicial authority should hold otherwise, he would answer.

The present motion, based upon this and probably upon other similar incidents occurring in the course of the depositions, is "for an order permitting and directing (the grand juror in question), any other members of the Bergen County Grand Jury which handed up the indictment in the above entitled matter, the Prosecutor, and any other persons who may be sworn and called to testify before the Supreme Court Examiner under the rule entered herein, permitting the taking of depositions, to answer questions relating to the testimony and happenings within the grand jury room relating to the indictment found in this cause, and for such other and further relief as may be proper."

It will be observed that the motion is broad enough to include not only grand jurors, the prosecutor, and clerk of the grand jury, but also witnesses before that body. As to these last, I do not understand that any difficulty arose on the taking of the depositions; and the rules relating to witnesses have always been more liberal than those relating to members of the grand jury, largely, no doubt, because the witnesses are not sworn to secrecy, as intimated by the present Chief Justice in State v. Fish, 90 N. J. Law, 17, 100 A. 181. The judgment in that case was reversed, 91 N. J. Law, 228, 102 A. 378, L. R. A. 1918E, 12, but on grounds not affecting the point in hand. In State v. Silverman, 100 N. J. Law, 249, 126 A. 618, it was held that a witness may be asked on cross-examination for the purpose of impeaching his testimony, whether he had not testified otherwise before the grand jury, and, if he denies it, the denial may be contradicted, for example, by the clerk of the grand jury, State v. Bovino, 89 N. J. Law, 586, 99 A. 313, or, as held in Massachusetts, the...