State v. Longo.

• Citation: 54 A.2d 788,136 N.J.L. 589
• Decision Date: 12 September 1947
• Docket Number: No. 9.,9.
• Parties: STATE v. LONGO.
• Court: United States State Supreme Court (New Jersey)

136 N.J.L. 589

54 A.2d 788

STATE

v.LONGO.

No. 9.

Court of Errors and Appeals of New Jersey.

Sept. 12, 1947.

Appeal from Supreme Court.

John R. Longo was convicted under an indictment for altering a public record. William George, the former assistant to the prosecutor of pleas, brought certiorari to review an order of the Hudson County Court of Quarter Sessions granting defendant a new trial. From a judgment of the Supreme Court, 134 N.J.L. 347, 48 A.2d 853, allowing the writ, John R. Longo appeals.

Reversed with directions.

Syllabus by the Court.

1. A private individual has no standing as a resident, a taxpayer, or otherwise, to seek a writ of certiorari to review a finding for or against another in a proceeding under an indictment.

2. Certiorari will not lie to correct an opinion, however hurtful it may be; an order, judgment or determination affecting the rights of the applicant is necessary as a foundation for the use of the writ.

3. The criminal business of the state shall be prosecuted exclusively by the prosecutors of the pleas except where otherwise provided by law.

4. The attorney general, when he lawfully acts in the place of the prosecutor of the pleas, succeeds to the authority of the latter to the extent of the representation.

5. The prosecution of a writ of certiorari to review the order of a Court of Quarter Sessions is criminal business within the meaning of the statute which designates the official to prosecute such business.

6. The Supreme Court is without jurisdiction to award a writ of certiorari to an applying private individual to enable him to supersede a prosecutor of the pleas and the attorney general in doing the criminal business of the state and so to wage a contest on behalf of the state, there being no charge of finding against the designated officials and no order of direct supersedeas against them.

7. Question reserved: Whether the Supreme Court, by virtue of its broad power over its prerogative writs and over criminal procedure, may, of its own motion and by appropriate procedure, bring up for review a matter of the state's criminal business without the application of either the state or the defendant.

George P. Moser, of Union City, for William George, respondent.

Raymond Chasan, of Jersey City, for John R. Longo, appellant.

Horace K. Roberson, of Bayonne, Prosecutor of the Pleas in and for the County of Hudson, for the State.

CASE, Chief Justice.

The papers carry the title ‘William George, Prosecutor-Respondent, v. August Ziegener, Judge of the Hudson County Quarter Sessions, and John R. Longo, Defendants'. They have to do with the criminal case of State v. Longo, 133 N.J.L. 301, 44 A.2d 349, and should be entitled in that cause, Curtis v. Joyce, 90 N.J.L. 47, 99 A. 932, affirmed 91 N.J.L. 685, 102 A. 1053, State v. Stevens, 133 N.J.L. 488, 44 A.2d 713. The appeal is from a judgment of the Supreme Court, George v. Ziegener, 135 N.J.L. 86, 50 A.2d 628, setting aside an order of the Hudson County Quarter Sessions which granted a new trial on the indictment for altering a public record upon the ground that the conviction had been the result of fraud.

The finding of fraud arose out of the following circumstance: William George, then assistant to the prosecutor of the pleas for the County of Hodson, had prosecuted the indictment to conviction. At the trial he placed upon the witness stand J. Owen Grundy, a codefendant who had plead guilty and who gave the highly material testimony that he had altered the record in question at the request and in the presence of defendant Longo. Grundy had previously testified before the grand jury to a diametrically opposite state of facts. Mr. George had full knowledge of that circumstance but did not inform either the court or the jury of it; an omission which, in the opinion of the Court of Quarter Sessions, was aggravated in that Longo was not represented by counsel at the trial, did not participate therein and had no legal protection other than that of the court and such as the state owed him. The court found that Grundy had committed perjury either before the Grand Jury or at the trial of the indictment and that Mr. George's failure to disclose the fact constituted a deliberate fraud upon the court and jury, as a result of which Longo was deprived not only of a fair trial but of a legal one. Thereupon the Sessions made the order for a new trial. We reserve decision on the merits of the order, although we note, as against respondent's contention that the court lacked jurisdiction because of lapse of time, that there is respectable judicial authority for the contention that a new trial may be granted on grounds of fraud even after the expiration of the term in which the final judgment was regularly perfected. State v. Tolla, 73 N.J.L. 249, 63 A. 338; Partlow v. State, 195 Ind. 164, 144 N.E. 661, 30 A.L.R. 1414; City of Chicago v. Nodeck, 202 Ill. 257, 67 N.E. 39. Respondent, in a supplement to his brief, directs attention to the recent decision by the United States Supreme Court in United States v. Smith, 67 S.Ct. 1330, 1334, as against that proposition; but he passes over the following notation in Footnote No. 4: ‘Of course, the federal courts have power to investigate whether a judgment was obtained by fraud and make whatever modification is necessary, at any time. Universal Oil Products Co. v. Root Ref. Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447.’

George, together with his superior, the prosecutor of the pleas, was out of office at the time of the proceedings relating to a new trial. Because the office of county prosecutor was vacant, the attorney general of the state, with the aid of his assistants, had taken over the duties of the prosecutor and he, in person, appeared for the state at the hearing on the application for a new trial. At his invitation Mr. George was present as a witness and testified at length. After the Sessions had acted, George, as a resident and taxpayer of Hudson County, applied to the Supreme Court for a writ of certiorari to review the order. The Supreme Court, 134 N.J.L. 347, 48 A.2d 853, allowed the writ in an opinion wherein it said:

‘The status of Mr. George as a resident and taxpayer of Hudson County is sufficient to warrant this application by him. Furthermore, the importance of the question involved is such as, in the opinion of the court, to warrant the issuance of the writ on its own motion.

* * *

‘The writ of certiorari is allowed with leave to both parties to take depositions on five days' notice.’

George had no standing as a resident, a taxpayer or otherwise to seek a writ of certiorari to review a finding for or against another in a proceeding under an indictment. He was not a party to the action and he did not represent a party. However, hurtful a court opinion may be to an individual concerning whom it is expressed, certiorari will not lie to revise or correct that opinion; an order, judgment or determination affecting the rights of the applicant for a writ of certiorari is necessary as a foundation for the use of the writ. Clay v. Civil Service Commission, 89 N.J.L. 194, 98 A. 312; Watson v. Medical Society of New Jersey, 38 N.J.L. 377; Newark v. Fordyce, 88 N.J.L. 440, 97 A. 67; Morgan v. Burnett, 121 N.J.L. 352, 2 A.2d 339; Vesey v. Driscoll, 132 N.J.L. 293, 297, 40 A.2d 291; Garden State Racing Association v. New Jersey Racing Commission, 134 N.J.L. 391, 48 A.2d 569. There is nothing in the order which names, refers to or hurts Mr. George. It would be confusing and oppresive if a defendant under an indictment had not only to resist the state as his prosecutor, but also any resident and taxpayer who chose to enter the controversy. Respondent cites contra the following cases: Ferry v. Williams, 41 N.J.L. 332, 32 Am.Rep. 219, wherein a writ went to allow an inspection of papers, public documents, in the hands of the Collector of Taxes; Wilson v. Commissioners of Jersey City, N.J.Sup., 107 A. 797, (not officially reported in state report) reversed on unrelated grounds, 94 N.J.L. 119, 109 A. 364, to test the validity of a liquor license; O'Brien v. Board of Public Utility Com'rs, 92 N.J.L. 44, 105 A. 132, to review a board ruling increasing passenger rates on a street railway; Biddle v. Borough of Riverton, 58 N.J.L. 289, 33 A. 279, to review a municipal ordinance regarding the issue of bonds and the proceedings had thereunder. The citations clearly are not in point.

The attorney general and the several prosecutors of the pleas are constitutional officers (Article 7, sec. 2, para. 3, N.J.S.A.). Their duties are not defined by the constitution but are left, by necessary implication, for definition by the legislature. Public Utility Commissioners v. Lehigh Valley R. R. Co., infra; O'Reardon v. Wilson, 135 A. 280, 4 Misc. 1008, 1011. A prosecutor of the pleas is empowered by statute (R.S. 2:182-1, N.J.S.A.), except as otherwise provided by law, to prosecute the pleas of the state in his county and to do and perform such acts and things in behalf of the state in and about such prosecution as were formerly done and performed by the attorney general; and (R.S. 2:182-4, N.J.S.A.) ‘the criminal business of the state shall be prosecuted exclusively by the prosecutors of the pleas, except in counties where, for the time being, there may be no prosecutor, or where the prosecutor desires the aid of the attorney general or as otherwise provided by law.’ The attorney general, among his other duties, is empowered (R.S. 52:17A-4f, Ch. 20, P.L. 1944 N.J.S.A. 52:17A-4, subd. f) to prosecute the criminal business of the state in a county having no prosecutor or render aid in a prosecution at the request of the prosecutor and may be called upon...