State v. Stewart. State

• Decision Date: 08 March 1949
• Docket Number: No. A-58.,A-58.
• Parties: STATE v. STEWART. STATE v. MITCHELL.
• Court: New Jersey Superior Court

64 A.2d 372

STATE

v.STEWART.

STATE

v.MITCHELL.

No. A-58.

Superior Court of New JerseyAppellate Division, Part A.

March 8, 1949.

Charles Stewart was indicted for resisting arrest, and Wesley Mitchell was indicted for interfering with a police officer and for assault and battery. Writs of certiorari were allowed and motions were made to the former Supreme Court to quash the indictment, and the causes were transferred to the superior court.

Motion denied and writs dismissed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Samuel L. Rothbard, of Newark, Abraham L. Friedman, of East Orange, and Rothbard, Harris & Oxfeld, of Newark, for defendants-appellants.

H. Russell Morss, Jr., and Edward Cohn, Union County Pros., both of Elizabeth, for respondent.

JACOBS, Senior Judge.

The defendant Charles Stewart was indicted for resisting arrest and the defendant Wesley Mitchell was indicted for interfering with a police officer and assault and battery; thereafter writs of certiorari were allowed and motions were made to the former Supreme Court to quash the indictments; the causes were transferred to this court pursuant to Article 11, Section 4, paragraph 8 of the Constitution of 1947, N.J.S.A.

The defendant Charles Stewart was employed as an hourly rated machine operator by the Phelps Dodge Copper Products Corporation. He was a member of Local 441, CIO, and went out on strike with his union; on January 18, 1946, during the strike the incident for which he was indicted occurred; the indictment was returned on June 20, 1946; he was arraigned on June 27, 1946, served notice of application for writ of certiorari on August 8, 1947, and obtained his writ on January 29, 1948. The defendant Wesley Mitchell was employed as an hourly rated test pump operator by the same employer; he was a member of the same union and likewise went out at the time of the strike; he was indicted for an incident which occurred on July 27, 1946; the indictment was returned on December 11, 1946; he was arraigned on December 20, 1946, served an original notice of application for writ of certiorari on April 9, 1947, which was denied by a single justice, see State v. Blusewicz and Mitchell, Sup.1947, 135 N.J.L. 591, 53 A.2d 619, served a further notice of application for writ on August 8, 1947, and obtained his writ on January 29, 1948. 136 N.J.L. 420, 56 A.2d 565. The defendant Stewart is white and the defendant Mitchell is colored. On February 24, 1948, the defendants served notices of motions for leave to withdraw their not guilty pleas and quash the indictments primarily on the ground that hourly paid wage earners and colored persons had been deliberately and intentionally excluded from the grand juries which indicted them. On February 25, 1948, the court granted leave to withdraw the pleas, noted the motions on the record and permitted the taking of depositions.

In the course of their depositions the defendants did not call any witnesses or otherwise seek to establish affirmatively how the members of the grand juries were selected. Instead, after taking the testimony of the defendants as to their occupations and color, they then proceeded to call the persons listed on the grand jury panels from 1942 through 1946 to ascertain their occupations and color. Various evidential questions arose which were ruled upon by the former Supreme Court. At the argument counsel for the defendants conceded that these rulings by the former Supreme Court established the law of the case and may not now be reviewed by this court. Several hundred persons who were on the grand jury panels from 1942 through 1946 testified as to the nature of their work and their color, stipulations between the parties with respect to others who were not called to testify were made part of the record, and compilations by the Department of Labor and the Department of Commerce classifying the persons listed on the grand jury panels in accordance with their major occupational status were introduced in evidence along with schedules comparing the occupations of employed persons in Union County with those listed on the grand jury panels and tables listing the Negroes who served on the grand jury panels and comparing the percentages of Negroes in the County with the percentages of Negroes listed on the panels. The State contends that this proof by the defendants is insufficient to establish their charge of intentional exclusion of wage earners and Negroes and that their motions should be denied on that ground as well as for the additional reason that their proceedings were instituted out of time.

I. The Timeliness of the Defendants' Applications.

R.S. 2:189-7, N.J.S.A., provided for the allowance of a writ of certiorari to remove an indictment, at the instance of an indicted person ‘within three months after the entry of any plea’. Stewart did not move for his writ until well over a year from the date of his plea and Mitchell did not move until over three months after his plea. No justification has been advanced for the delay. The public interest demands that unnecessary delays in bringing indictments to trial be eliminated and the three months statutory limitation as applied to the facts presented appears wholly reasonable. Cf. Red Oaks, Inc., v. Dorez, Inc., Sup.1936, 117 N.J.L. 280, 187 A. 737; Peckitt v. Board of Adjustment, Sup.1948, 136 N.J.L. 405, 56 A.2d 621. Under these circumstances the relief sought here by the defendants might well be denied and their writs dismissed without more. However, in view of the serious nature of the charges and the public importance of the questions presented, we shall consider the merits of the controversy.

II. The Alleged Exclusion of Wage Earners.

The defendants assert that the exclusion from grand jury panels of a particular economic group such as hourly rated wage earners would violate the law of New Jersey as well as constitutional principles announced by the United States Supreme Court. We find nothing in our State law or in the decisions of our State courts which deals expressly with the subject. The governing statute provides that grand jury lists shall be prepared with due regard for the ‘just distribution’ of jury service among qualified persons. See R.S. 2:88-1, N.J.S.A. The legislature has not attempted to direct explicitly the sources from which grand jury lists are to be compiled or the precise manner in which they are to be prepared. Although our courts have stated that the lists must be prepared impartially and without a view towards securing indictments, see State v. McCarthy, Sup.1908, 76 N.J.L. 295, 69 A. 1075, they have also stated that they will not substitute their own formula for that chosen by the jury commissioners in the absence of proof of ‘bad motive’. See State v. Biehl, Sup.1947, 135 N.J.L. 268, 270, 51 A.2d 554. In addition, they have announced the rule that the ‘statutory provisions respecting the preparation of lists and the drawing of the panel are regarded as directory only, and that irregularities therein are no ground of challenge, unless they are such as plainly operated to prejudice the challenging party.’ See State v. Simmons, Err. & App.1938, 120 N.J.L. 85, 88, 198 A. 294, 296; State v. Biehl, supra.

In Thiel v. Southern Pacific Co., 1946, 328 U.S. 217, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 166 A.L.R. 1412, the United States Supreme Court, after pointing out that the American tradition of jury trial ‘contemplates an impartial jury drawn from a cross-section of the community’ and that prospective jurors should be selected without systematic and intentional exclusion of any qualified groups, economic or otherwise, upset a petit jury's verdict in a lower federal court, without any showing of actual prejudice, on the ground that all daily wage earners had been intentionally excluded from the panel. The decision was not rested on constitutional requirements applicable to state courts, but represented an exercise by the Supreme Court of its supervisory control over the administration of justice in the federal courts. In the light of the later decision in Fay v. New York, 1947, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, sustaining a ‘blue ribbon’ jury's verdict and the division among the Supreme Court Justices, the question as to whether the comprehensive pronouncements of the Thiel case will be subsumed within the 14th Amendment to control State proceedings may not be answered with any assurance. In any event, for present purposes it is sufficient to point out that in the Fay case the court held that the defendant there making the charge of exclusion of an economic class had not met the exacting burden of proving it and had not made the showing of prejudice which was required.

In the case before us the proof was of the same type although less impressive than that held insufficient in the Fay case. Although the defendants urge that the grand jury panels were weighted in favor of proprietors and supervisory employees, they do not now contend that any economic segment of the population was entirely excluded. On the contrary, examination of the testimony discloses a rather complete cross-section of an American community, including the bank official, teller and clerk, the teacher, librarian, nurse and stenographer, the doctor, dentist, accountant, druggist and optometrist, the big business proprietor, the plumbing contractor, carpenter, butcher and barber, the corporate executive, the confectionary store owner, tavern keeper, and service station operator, the meter reader, toolmaker, machinist, waitress, bricklayer and cook, the union business agent, insurance claim agent, real estate broker, the assembly line worker, and others too numerous to list here. On the other hand,...