State v. Bowman

• Decision Date: 29 November 1911
• Citation: 82 N.J.L. 210,81 A. 561
• Parties: STATE v. BOWMAN.
• Court: New Jersey Supreme Court

81 A. 561

82 N.J.L. 210

STATE

v. BOWMAN.

Supreme Court of New Jersey.

Nov. 29, 1911.

(Syllabus by the Court.)

Frank Bowman was indicted for illegal voting, and applies for a writ of certiorari. Denied.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

George A. Bourgeois and Gilbert Collins, for the motion.

Edmund Wilson, Atty. Gen., for the State.

GARRISON, J. The defendant, being under indictment for illegal voting at a general election held in Atlantic county, of November 8, 1910, applies for the allowance of a writ of certiorari to remove into this court not only such indictment and its caption, but also the order under which a special term of the oyer of that county was held on July 5, 1911; also the order of said court, disqualifying the sheriff of said county from selecting and summoning a grand jury to serve at said special term, and the proceedings on which such order was based; and also the order appointing elisors to select and summon a grand jury at said special term, by whom the said defendant was indicted. The avowed purpose of the defendant (and the sole object of the writ applied for) is to move in this court to quash the said indictment, not for anything that appears upon its face or by its caption, but solely upon the ground that the grand jury, by whom the indictment against him was found, was not legally selected or summoned under the several orders and proceedings he now seeks to have brought before this court for review. Presumably the testimony necessary to support some of the contentions advanced will be sought to be taken under a rule in such certiorari, with the expectation that upon the preponderance of testimony, or by drawing the proper inferences therefrom, this court will determine the facts, and apply the law to the facts thus established.

In the case of State v. Rickey, 9 N. J. Law, 293, Ford, J., in overruling an offer to read affidavits upon a motion to quash an indictment, said: "This is a motion to quash an indictment, and comes in the place of a demurrer, and therefore I can see no reason why we should depart from the rules applicable to demurrers. * * * I think, therefore, that the affidavits cannot be read." He also said in the same connection, "If the indictment is sufficient upon the face of it, we cannot quash."

This last statement, which is not an accurate one as applied to the power of the court, was probably intended as a declaration of a settled judicial policy; the power of this court to draw into it a criminal cause at any stage for any lawful purpose can hardly be questioned, in view of the constitutional intrenchment of its historical powers. The settled policy to which, we take it, Mr. Justice Ford alluded has been continued to this day by the allowance of the writ of certiorari to bring into this court, for the purposes of a motion to quash, indictments that on their face, or by their caption, appeared to be incapable of supporting a judgment of conviction. The two essential factors in this established exercise of discretion are, first, that the question thus calling for preliminary decision is spread upon the fact of the record; and, second, that, being thus established, it enables the allocatur to be withheld, where its probable effect would be merely to postpone the trial of the indictment.

It is evident, therefore, that where, as in the present case, the grounds of the motion to quash do not appear by the indictment or its caption, but are to be shown by matters aliunde, the essential...