State v. Ellenstein

• Decision Date: 15 November 1938
• Docket Number: No. 213,213
• Citation: 2 A.2d 454,121 N.J.L. 304
• Parties: STATE v. ELLENSTEIN et al., and twenty other cases.
• Court: New Jersey Supreme Court

2 A.2d 454

121 N.J.L. 304

STATE

v. ELLENSTEIN et al., and twenty other cases.

Nos. 213, 214, 216-218, 228-235, 241-244, 250-252, 263.

Supreme Court of New Jersey.

Nov. 15, 1938.

[Copyrighted material omitted.]

[Copyrighted material omitted.]

[Copyrighted material omitted.] Meyer C. Ellenstein and others, Harry S. Reichenstein, Jules E. Tepper, Frank A. Boettner, Frank A. Boettner and another, Pearce R. Franklin and others, Pearce R. Franklin and another, Jack H. Lehman, Joseph C. Lippman and others, Anthony F. Minisi, Michael Silver, Dorothy Chernin, Irving Fieldman and others, Reginald C. S. Parnell and others, Joseph Heimberg and others, David B. Raschkover and others, William F. Yeomans, Jr., John J. Berry, W. Howard Demarest, and Harold J. McCabe, were indicted for offenses relating to alleged unlawful expenses of the City of Newark, which were brought to the Supreme Court by a single writ of certiorari. On motions to quash indictments.

Motions granted as to certain defendants and denied as to other defendants.

Argued May term, 1938, before CASE, DONGES, and PORTER, JJ.

Warren Dixon, Jr., Sp. Asst. Atty. Gen., and William A. Wachenfeld, Prosecutor of the Pleas, and Joseph E. Conlon, First Asst. Prosecutor, both of Newark, for the State.

John E. Toolan, of Perth Amboy, for Meyer C. Ellenstein.

Joseph C. Braelow, of Newark, for Jules E. Tepper.

John Drewen, of Jersey City, for Irving Fieldman.

John W. McGeehan, Jr., of Newark, for Pearce R. Franklin.

Osborne, Cornish & Scheck, of Newark, for Frank A. Boettner.

Ferdinand D. Masucci, of Newark, for Anthony F. Minisi.

Merritt Lane, of Newark, for Dorothy Chernin et al.

Arthur J. Connelly, of Newark, for John J. Berry.

Richard J. Congleton and Congleton & McLaughlin, all of Newark, for William F. Yeomans, Jr.

Carl Abruzzese, of Newark, for Harold J. McCabe.

Bernard Devin, of Newark, for Harry S. Reichenstein.

Harold Simandl, of Newark, for Joseph Heimberg and David B. Raschkover.

CASE, Justice.

Forty indictments were found by an Essex County grand jury, most of them against officials of the City of Newark and all of them arising out of an investigation ordered by Mr. Justice Parker under the authority of ch. 3, P.L.1907, R.S.1937, 40:6-1, 2, into alleged unlawful expenditures of the City of Newark. The indictments are numbered 467 to 489, inclusive, and 496 to 512, inclusive, of the September Term, 1937, Essex County grand jury. Those indictments were brought into this court by a single writ of certiorari and are grouped under numerous titles with a like volume of case numbers; but all of the cases are argued under the listing of No. 213 May Term, and we are therefore unable to distinguish the cases by the calendar listing. The disposition will clearly appear by the indictment numbers. The present status is that the numerous defendants, including three fictitious names, in whose behalf the writs were issued, have, by the court's permission, withdrawn their pleas of not guilty for the purpose of moving to quash the indictments, and the motions to quash are now before us. The rule by which this was done limits the grounds to which the motions may go and thus some of the reasons presented in the defendants' briefs, prepared before the rule was entered, become pointless.

Mr. Warren Dixon, Jr., a Supreme Court Commissioner, was designated as the statutory "expert" to conduct the investigation. After he had completed the inquiry and rendered his report, he was appointed special assistant attorney-general to assist the Prosecutor of the Pleas of Essex County in prosecuting the matters criminally.

Mr. Justice Parker made the disclosures of the investigation the subject of a charge to the grand jury on October 15, 1937, and in so doing made free use of and quoted at length from the report; indeed, it may be said that the charge was in part a cursory review, with running comments, of the high spots of the report which consisted of a book, approximating folio size, of 400 printed pages. A copy of the report was placed in the hands of each juryman. Later the justice supplemented his oral charge by a brief writing communicated to the grand jury by Mr. Dixon and hereinafter discussed.

The defendants contend that the charge of October 15th was productive of bias and prejudice in the minds of the jurors. But they submit no proof that the jurors, in coming to their findings, were influenced by bias or prejudice, either from this or any other source; and as the allegation is one of fact it is for the defendants, who advance the assertion, to prove it. Particularly is fault found with the references made to the report and with the recommendation that the jurymen read the report "and thereby get the atmosphere of the situation as a basis for the inquiry that you should yourselves make to the end that parties appearing to be guilty of crime be brought before the bar of the court for trial." We have inserted italics to emphasize the thought, obvious it would seem even without emphasis, that the jurymen should use the lengthy report with its multitude of incidents merely as their agenda, the memoranda of transactions which they should themselves investigate. The report was a court record, the epitome of many months of inquiry into allegedly unlawful and corrupt expenditures of the public funds of the City of Newark, conducted under the supervision of the Supreme Court justice who was making the charge and in accordance with the statute passed by the legislature. The charge made clear that neither the report nor the evidence taken by the commissioner would support an indictment and that the jury was to make direct investigation:—"In one sense it is unfortunate that neither the report of the Commissioner nor the evidence taken by him is directly available to support indictments. So deliberate are the processes of the law, and so jealous is it of the rights of an accused party, that an indictment must rest on legal evidence submitted to or procured by the Grand Jury itself. * * * The transactions of the bureau should have a thorough investigation at your hands. * * * Upon reading the Commissioner's report you will, no doubt, desire to investigate the matter fully. * * * The atmosphere is one of conspiracy and bribery, and the case should be thoroughly investigated * * *." There is reason to believe that the jury did not regard the report as evidential inasmuch as it made request, which was complied with, to Justice Parker for special instructions regarding the use as proofs of stenographic notes of testimony taken before Mr. Dixon in the course of his investigation. Further, the rule in this state is that the question whether the evidence before a grand jury was competent or incompetent is, saving misconduct, irrelevant on a motion to quash. State v. Dayton, 23 N.J.L. 49, 83 Am.Dec. 270; State v. Borg, 150 A. 189, 8 N.J.Misc. 349. The citation by defendants of Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050, and other federal decisions leads us to note at this point and also as bearing upon the discretionary character of a motion to quash, discussed infra, that not only is no misconduct charged against the jurors, but no fault is found either with the call for or the composition of the grand jury. So far as appears or is claimed, there is no taint in the drawing, swearing or membership of that body.

As a further instance of the alleged tendency of the charge to arouse bias the defendants cite the court's reference to an article shortly theretofore printed in a weekly journal under the caption "Why Not the Grand Jury?", the purport of which was that a grand jury "can dig into anything," and could and should be a very useful agency in uprooting crime. So, speaking generally of criminal matters within the county, the grand jury can; and so it could and should be. Bias against crime should not be misinterpreted as bias against a suspect. The article was of nation-wide scope, did not mention and had no reference to the Newark situation. The justice, as we grasp the significance of the charge, thought that if the proofs were as the report indicated the grand jury should find some indictments; but for clarity of pronouncement let us omit the contingency and assume that he considered that there should be indictments and that he put that thought over to the jury. That, in our opinion, does not invalidate the indictments. Freedom of determination was not taken from the jury. There is not, and in the interest of law and order there ought not to be, greater limitation of comment upon the court in addressing a grand jury than in addressing a petit jury at the trial of a criminal indictment. Our trial judges are allowed wide latitude in commenting upon the evidence to the jury following criminal as well as civil trials. It was held by the Court of Errors and Appeals in State v. Overton, 85 NJ.L. 287, 294, 88 A. 689, 691: "Counsel assert that 'a trial judge should not intimate any opinion upon the facts.' This rule does obtain in some jurisdictions; but it is not, and we think never has been, the rule in this state." The opinion further states that "it is always the right, and often the duty of a trial judge to comment on the evidence and give the jury his impressions of its weight and value, and such comment is not assignable for error so long as the ultimate decision on disputed facts is plainly left to the jury". See, also, State v. Hauptmann, 115 NJ.L. 412, at page 429, et seq., 180 A. 809, for a review of the cases and a restatement of the rule. State v. Seifert, 85 NJ.L. 104, 88 A. 947, affirmed 86 N.J.L. 706, 92 A. 345, contains perhaps the most positive judicial comment of any of the criminal charges taken up on appeal. The portion of the charge covered by the assignment in that case closed with these words: —"Under the law as I have given it to you he (viz., the defendant) stands here without any justification and is guilty of assault and battery. It...