State v. Di Paolo

• Decision Date: 06 March 1961
• Docket Number: No. A--61,A--61
• Citation: 168 A.2d 401,34 N.J. 279
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Carmine DI PAOLO, Jr., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 279

34 N.J. 279

168 A.2d 401

STATE of New Jersey, Plaintiff-Respondent, v. Carmine DI PAOLO, Jr., Defendant-Appellant.

No. A--61.

Supreme Court of New Jersey.

Argued Dec. 20, 1960.

Decided March 6, 1961.

Salvatore J. Vuocolo, Jersey City, for appellant.

Michael R. Imbriani, Asst. Prosecutor of Somerset County, Bound Brook, for respondent (Arthur S. Meredith, Somerset County Prosecutor, Somerville, Attorney; Michael R. Imbriani, Bound Brook of counsel).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant was convicted of murder in the first degree and sentenced to life imprisonment upon the jury's recommendation. He appeals to this court pursuant to R.R. 1:2--1(c).

Defendant had courted his victim, Gladys Mielnicki. Their relationship was somewhat turbulent. Defendant wanted to marry her but she doubted a marriage could succeed. During a period of a week or so prior to the homicide, defendant told several friends that he would kill decedent, saying if he could not have her, no one would. On the morning of the crime, he left his home carrying a kitchen paring knife. He also had a loaded shotgun in his automobile. He intercepted decedent on her way to work. He entered her car and during a course of travel, to which we will again refer, he inflicted some 40 stab wounds, most of them about the neck. Defendant drove to State Police barracks at Somerville where he revealed his deed. Decedent was found on the floor of the right front of the car. She was dead when examined. Beneath her body lay the knife. Defendant signed a confession and reenacted the events of the day.

I.

Defendant challenges the validity of the indictment. He argues there is no proof the crime was committed in Somerset County and hence the grand jury lacked 'jurisdiction' of the offense.

Defendant's odyssey began in Middlesex County and terminated in Somerset. The course of travel also penetrated Union County. According to defendant's confession, there were several distinct stabbing episodes. The place of death could not be fixed precisely. The State argues the evidence would justify a finding that decedent died in Somerset County, but no finding was made since the trial court deemed the situation to be controlled by a rule of court to which we shall refer. Hence if defendant's point has validity, the factual issue remains undetermined.

The rule to which we just referred is R.R. 3:6--1 which reads in part:

'(a) Except as otherwise provided herein, the prosecution for a criminal offense shall be had in the county in which the offense was committed.

'(b) Where it is uncertain in which one of two or more counties the criminal offense has been committed, prosecution may be had in any of such counties.

'(c) Whenever a person shall die in one county as a result of a criminal offense committed in any other county or counties, the prosecution may be had in any of such counties.

'(d) Whenever the body of any person who shall have died as a result of a criminal offense is found in any county, prosecution may be had in such county, regardless of where the criminal offense was committed.'

The situation is embraced by (b) and (d) above.

Defendant argues the rule is invalid as an infringement of the constitutional right to indictment. Article I, Par VIII, provides that 'No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury * * *.' Defendant contends that there is an inherent limitation which confines jurisdiction to the grand jury in the county in which the crime was committed. He adds that unless the State can prove the precise place, he is entitled to go free. That result would be absurd, but he says the absurdity is constitutionally entrenched.

Indictment is patently a matter of practice and procedure. State v. Greco, 29 N.J. 94, 104, 148 A.2d 164 (1959). That this is so, does not however end the inquiry. Many of the fundamental guarantees of the Constitution are of that nature, and in our State the right to indictment is one of them. Hence the question is whether the constitutional guarantee of indictment includes some immutable principle of venue. The constitutional provision quoted above being silent as to venue, we must examine the history of the subject to determine whether the claimed limitation is implicitly a part of the guarantee.

The aim of the constitutional guarantee is to protect against arbitrary prosecution by government. The essence of the right is that no man shall be brought to trial for crime unless a grand jury of his peers shall first find sufficient cause for the charge. Although a rule developed at early common law that a prosecution be instituted in the county in which the crime was committed, the reasons seem unrelated to the stated aim of the guarantee. Rather the rule reflected a practice made necessary by circumstances which no longer exist. Communities were scattered and travel difficult. Petit jurors decided causes upon their personal knowledge rather than upon the testimony of witnesses and probably grand jurors as well relied upon what they knew or learned from their neighbors. That the concept of venue was not thought to be an essential attribute of the procedural guarantee is evidenced by the fact that when changing circumstances made the then concept of venue a fortuitous haven for the guilty, Parliament enacted numerous exceptions to the common law rule and did so long before the separation of the American Colonies. 4 Blackstone, Commentaries 303; 1 Chitty, Criminal Law 177 (1836); 1 Stephens, History of the Criminal Law in England 277 (1883); see also State v. Wyckoff, 31 N.J.L. 65, 69 (Sup.Ct.1864).

Thus at the time of the adoption of the American constitutions the common law rule of venue had already been modified by legislation designed to meet situations for which the general rule was inadequate or inapt. Moreover, the nature of the subject suggests that room must be left for accommodation with changing needs, so long as there is preserved the promised security from arbitrary charge by officialdom. In the light of both the history and the reason for the guarantee, we cannot fairly assume the Constitution intended to imbed a rule of venue. Decisions elsewhere generally hold that constitutional provisions such as ours do not embody a requirement that indictments be found only in the county in which the crime was committed. The subject is fully discussed in Annotation, 76 A.L.R. 1034 (1932) and in Blume, 'The Place of Trial of Criminal Cases,' 43 Mich.L.Rev. 59 (1944). See also State v. Pace, 129 Conn. 570, 29 A.2d 755 (Sup.Ct.Err.1943). As pointed out in the cited annotation, a contrary result has been reached in jurisdictions where the constitution either expressly requires the indictment to be found in the county of the crime or expressly provides for trial in such county. See also 4 Wharton, Criminal Law and Procedure § 1729, p. 516 (1957). It is significant that neither provision appears in our Constitution. As we have already noted, our indictment provision (Art. I, Par. VIII) is silent as to venue, and the provision for trial by jury (Art. I, Par. X) is also silent with respect to the place of trial. Indeed the Superior Court was granted original jurisdiction throughout the State in All causes (Art. VI, § III, par. 2), and it is the court to which all indictments are returned for trial.

This conclusion is fortified by the fact that our Legislature has dealt with the subject of venue without, so far as we know, any question as to its constitutional authority to do so. See State v. Wyckoff, supra (31 N.J.L. at p. 69); State v. James, 96 N.J.L. 132, 148, 114 A. 553, 16 A.L.R. 1141 (E. & A. 1921); R.S. 2:184--1 to 6; L.1944, c. 198, § 1, p. 715, N.J.S.A. 2:184--2.1.

Hence we are satisfied that the Constitution does not embody the common law rule of venue. This leads to the final question whether this court may deal with venue under its constitutional authority to 'make rules governing * * *, subject to law, the practice and procedure in all such courts.' (Art. VI, § II, par. 3). As we have said, the subject of indictment and the incidental matter of venue plainly fall within the area of practice and procedure. We add that the Legislature entertained the same view when, in enacting Title 2A by L.1951, 1st Sp.Sess., c. 344, it deliberately omitted to reenact the venue provisions of Title 2 as well as other provisions relating to indictment (R.S. 2:184--1 to 6; 2:188--1 to 26), to the end that the Supreme Court could deal with the subject under its rulemaking power. State v. Haines, 18 N.J. 550, 558, 115 A.2d 24 (1955).

It is argued that unless some constitutional restraint is found, the Legislature or the Court could authorize a grand jury sitting in one county to attend to all of the criminal business in another. We need not now consider whether some limitation in that regard may be found in organic law. Surely the question is not suggested by a rule which permits indictment and trial in a county where the accused deposited the body of his victim. The situation hypothesized in the argument is likely to remain but hypothetical and so we should leave it.

We should discuss the method whereby defendant sought to raise the issue of venue. He moved for a dismissal at the close of the State's case. Proper practice required a motion before trial. We so held in State v. Greco, supra (29 N.J. at p. 104, 148 A.2d, at p. 170). As there pointed out, R.R 3:5--5(b) (2) provides that 'Defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation other than that it fails to show jurisdiction in the court or to charge an offense must be raised by motion before trial' and that 'Failure so to present any such defense or objection constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.' The homicide was committed within the State of New...