State v. Hart

• Decision Date: 28 September 1915
• Citation: 95 A. 362
• Parties: STATE v. HART.
• Court: New Jersey Supreme Court

95 A. 362

STATE

v. HART.

Supreme Court of New Jersey.

Sept. 28, 1915.

Leon O. Hart was indicted for offenses committed at an election, and applies for certiorari to quash the indictment. Application denied.

Argued June term, 1915, before PARKER, MINTURN, and KALISCH, JJ.

Harlan Besson, of Hoboken, for applicant. George T. Vickers, of Jersey City, for the State.

KALISCH, J. The defendant, together with Alexander E. Kittredge and Ernest L. Erxmeyer, was indicted by the Hudson county grand jury, in that he, in conjunction with the individuals named, did willfully and unlawfully counsel, procure, advise, assist, and abet Arthur Reich, an election officer, to commit certain offenses at a primary election of the Republican party, held in Hoboken for the Third district of the First ward, on September 23, 1913. A former indictment found against the defendant was quashed upon the ground that it was defective (91 Atl. 1071), and the present indictment was found against the defendant, minus the particular defect that vitiated the former one.

The grounds upon which the writ of certiorari is sought are: (1) That the indictment charges no criminal offense, in that the laws which provide for the punishment of fraudulently misreading, calling off, canvassing, counting, tallying, estimating, returning of ballots, etc., apply solely to a general and not a primary election. (2) That the indictment is bad, because of duplicity in charging the offense. No special reason has been shown by the defendant why the indictment should be removed to this court, for the purpose of permitting him to make the motion to quash here.

The common and adopted practice in this state appears to be to allow a writ of certiorari upon the application of the Attorney General or prosecutor of the pleas, without any special reason being assigned therefor; but where the application is made on behalf of a defendant, some special reason for allowing the writ must appear. State v. Zabriskie, 43 N. J. Law, 369, affirmed in Court of Errors, Zabriskie v. State, 43 N. J. Law, 640, 39 Am. Rep. 610; State v. New Jersey Jockey Club, 52 N. J. Law, 493, 19 Atl. 970. For example, that there was objection to the trial judge on the ground of bias, interest, or the like; or for matters dehors the indictment, but affecting the validity of the indictment; or where a change of venue was sought for the reason that a fair trial could not be had in the county where the indictment was pending; or for the purpose of a motion to quash, where the trial judge or prosecutor consents that it be removed; or where a motion to quash has been made in the court where the indictment was found, or to be tried, and the motion is refused, though it clearly appears that the indictment should have been quashed; or where on such motion the trial court desires the...