State v. McCarthy

• Decision Date: 08 June 1908
• Citation: 76 N.J.L. 295,69 A. 1075
• Parties: STATE v. McCARTHY et al.
• Court: New Jersey Supreme Court

69 A. 1075

76 N.J.L. 295

STATE

v. McCARTHY et al.

Supreme Court of New Jersey.

June 8, 1908.

(Syllabus by the Court.)

James W. McCarthy and others were indicted for conspiracy to obstruct a primary election. Motion to quash indictment. Indictment quashed.

Argued November term, 1907, before SWAYZE and TRENCHARD, JJ.

Merritt Lane, for the motion. William H. Speer, opposed.

SWAYZE, J. The defendants were indicted at the Hudson oyer and terminer for conspiracy to obstruct a primary election by unlawfully arresting the election board. The indictment has been brought to this court by certiorari, and a motion made to quash because of partiality on the part of the sheriff in selecting the grand jury.

A similar question was presented in Gibbs & Stanton v. State, 45 N. J. Law, 379, 46 Am. Rep. 782. In that case Chief Justice Beasley said: 'That the prisoner, before he has pleaded, has the legal right to appeal to the discretion of the court to quash the indictment on account of the illegal composition of the grand jury, or of the misbehavior of the sheriff in selecting it, is everywhere admitted." The only question which the court, composed at that time, besides the Chief Justice, of Justices Depue, Van Syckel, and Knapp, considered worthy of discussion, was whether such an objection, which admittedly could be raised by an appeal to the discretion of the court on a motion to quash, could also be raised as a matter of legal right by a plea in abatement. It was held that a motion to quash was the only method. The decision was affirmed in the Court of Errors and Appeals on the opinion of the Supreme Court. The defendants in the present case have followed the procedure there pointed out. The learned Chief Justice cited no authority and thought his proposition too clear to require support. A reference to the record of the case shows that it was thoroughly discussed at the bar, and that the objections to permitting an indictment to be questioned after it has been presented to the court were stated with great force and ability by Mr. Justice Magie in his opinion on the demurrer to pleas. All these objections were present to the mind of the court, and the opinion was the result of careful and deliberate consideration. We are not at liberty at this late day to disregard a decision concurred in by so many eminent judges. The remarks of the Chief Justice on this subject in that case have recently been criticised as having been unnecessary for the decision, and we have therefore thought it advisable to re-examine the question with the care which its importance demands. As a result of that examination, we think the views expressed are in accord with sound legal principles.

By our Constitution no person can be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury. This must mean a legally constituted grand jury having the qualities which grand juries were required to have at the time the Constitution was adopted, so far as those qualities are essential to secure the end of the protection of individual liberty. As was said by the Supreme Court of the United States in Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061, referring to the traverse jury: "It must consequently be taken that the word 'jury' and the words 'trial by jury' were placed in the Constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument." Our own Court of Errors and Appeals, while conceding a right in the Legislature to modify procedure in unessential matters, held that "the words 'trial by jury' import a trial by a jury of 12 men, impartially selected, who must unanimously concur in the verdict." Brown v. State, 62 N. J. Law. 666, 678, 42 Atl. 811. The court was dealing only with the trial jury, but if the constitutional guaranty against prosecution for a criminal offense, except after indictment by a grand jury, is to be of any efficacy, it must be held to require such a grand jury in its essential qualities as existed when the Constitution was adopted. The oath required to be taken by the sheriff indicates what is necessary in this respect. He is required to promise that he will truly, faithfully, and impartially summon, impanel, and return good and lawful men for jurors, able and sufficient, and not suspected or procured. This oath dates from the act of March 18, 1796 (Paterson, Laws, p. 201, § 3), and, in substance, is to be found in the colonial act of 21 George II (1 Nevill, 354). It had been upon the statute book for nearly a hundred years when the Constitution was adopted. It can hardly be denied that, if the grand jury is to serve its purpose of standing between the state and the citizen, it is essential that it should be impartially selected, and not chosen for the purpose of securing indictments. If the latter were to be permitted, the constitutional guaranty might as well be effaced. The very fact that the Legislature has chosen to make the sheriff's oath specific in respect to all jurors is sufficient to demonstrate that no difference was intended between grand and petit jurors. A grand jury summoned and impaneled otherwise than impartially may be a grand jury in form and...