State v. Then

• Decision Date: 07 February 1935
• Docket Number: No. 214.,214.
• Citation: 177 A. 87
• Parties: STATE v. THEN et al.
• Court: New Jersey Supreme Court

177 A. 87

STATE

v. THEN et al.

No. 214.

Supreme Court of New Jersey.

Feb. 7, 1935.

Proceeding by the State against Anthony M. Then, Benjamin W. Sangor, and the Ocean County Court of Quarter Sessions. To review an order quashing an indictment, the State brings certiorari.

Order set aside, and indictment remitted for prompt trial.

Argued May term, 1934, before TRENCHARD and PERSKIE, JJ.

Leo Bobbins, of Lakewood (Franklin H. Berry and Howard Ewart, both of Toms River, of counsel), for the State.

Minturn & Weinberger, of Newark, for respondents.

PERSKIE, Justice.

The writ of certiorari is prosecuted in this case by the state at the instance and with the assistance of the Ocean County Bar Association.

Four indictments were returned against the defendants Anthony M. Then and Benjamin W. Sangor. The learned trial judge below returned them to the prosecutor, and in so doing described them as follows:

"I am returning to you, Mr. Prosecutor, the indictments in the Then matter. I am going to decide the motion to quash in the matter of the State of New Jersey against Anthony M. Then, the State of New Jersey against Benjamin W. Sangor, and the State of New Jersey against Anthony M. Then and Benjamin W. Sangor."

"In the State of New Jersey against Anthony M. Then, there are four indictments, and this is on motion to quash four indictments against Anthony M. Then and Benjamin W. Sangor, one indictment, presented by the Grand Jury for the December Term, 1931 and 1932, against Anthony M. Then alleging a violation of Section fifteen of an Act of the Legislature, entitled "An Act Concerning Trust Companies", Revision of 1899, and three indictments presented by the Grand Jury for the April Term, 1932, alleging larceny and embezzlement against Anthony M. Then and Benjamin W. Sangor, individually and jointly. * * *"

The only indictment that is made to appear in the record before us is the one numbered 1492. This indictment was returned by the grand inquest for the county of Ocean (Ocean oyer and terminer) during the April, 1932, term.

The sixth count of this indictment charged that Anthony M. Then and Benjamin W. Sangor "unlawfully and feloniously did steal, take and carry away," etc., on October 10, 1930, securities valued at $81,320.22, "* * * of the goods and chattels of the Toms River Trust Company, a banking corporation of the State of New Jersey, administrator pendente lite of the estate of James D. Holton, deceased. * * *" Mr. Then was the president of the Toms River Trust Company and Mr. Sangor was the chairman of the board of directors thereof.

On April 17, 1933, a motion was made to withdraw the pleas of not guilty which had theretofore, on September 26, 1932, been made by these defendants, for the purpose of making a motion to quash all the indictments. Whereupon, on the day first mentioned, such a motion was made. Decision on the motion was reserved. On May 8, 1933, the trial judge filed an opinion granting the motion. (Let it be noted that the aforesaid motion appears as having again been made on the day it was granted, viz., May 8, 1933.)

Respondents, in limine, strongly contend that the quashing of the indictments is not a proper subject-matter of review; that it was a matter of judicial discretion on the part of the court below, and therefore not reviewable. Of course, it is the well-recognized and firmly established principle of the law of our state that the granting, or refusing to grant, a motion to quash an indictment, is a matter of judicial discretion. See cases collated in the exhaustive and illuminating opinion of Mr. Justice Parker, for the Court of Errors and Appeals, in State v. Riggs, 92 N. J. Law 575, 576, 106 A. 467, under point 1.

But, says the prosecutor, in effect, the quashing of the indictments, under the particular facts and circumstances of the instant case, constituted an abuse of that judicial discretion (State v. Potter, 83 N. J. Law, 428, 85 A. 216, affirmed 85 N. J. Law, 388, 91 A. 1071; State v. Lynch, 103 N. J. Law, 64, 67, 134 A. 760), and therefore is a proper subject-matter for review by this court.

Thus we come to the primary inquiry, What is meant by the words "Judicial discretion," or what is their legal significance?

In Rex v. Wilkes, 4 Burr. 2527, 2539, and cited by the later Chancellor Walker in his dissenting opinion, in State v. Lynch, supra, it was said:

"Lord Mansfield—God forbid that the defendant should not be allowed the benefit of every advantage he is entitled to by law. * * *

"But discretion, when applied to a court of justice, means sound discretion, guided by law. It must be governed By rule, not by humour. It must not be arbitrary, vague and fanciful, but legal and regular."

See, also, section 368—2 (Discretion of Court), 31 C. J. p. 797.

And this discretion "* * * is not reviewable here upon certiorari, unless in the language of this court in State v. Vandervere, 25 N. J. Law [1 Dutch.] 669, it is manifest that the judicial discretion was used 'capriciously in violation of settled legal principles of equity or of law.' 1 Bishop, Or, Proc. 362; State v. Black, ubi supra [(N. J. Sup.) 20 A. 255]," as stated in State v. Potter, 83 N. J. Law, 428, 85 A. 216, 217, affirmed 85 N. J. Law, 388, 91 A. 1071. See, also, State v. Riggs, supra, in which the Court of Errors and Appeals refused to depart from, and in fact reaffirmed, the aforesaid rule as laid down in State v. Potter, supra. (Italics ours.)

Our courts have at all times endeavored to and have, in fact, exercised their judicial powers to the end of preserving and protecting the rights of all litigants. Our reports are replete with all classes of cases, civil and criminal, particularly the latter, wherein the courts have checked and stayed the invasion of, or the assault upon, the human and property rights of all parties. And at the same time our courts have not been unmindful of the fact that society generally through the medium of its enforcing agency in criminal matters, the state, was also entitled to and did receive like attention.

It would indeed be a travesty on justice if it were otherwise. So we find that it has been held that a motion to quash an indictment, although its matter is addressed to the discretion of the court, should not be granted where an injustice may result to the state and where a refusal to do so deprives the defendant of no substantial right. State v. Lehigh Valley R. Co., 90 N. J. Law, 372, 376, 103 A. 685. And, if one of the several counts of an indictment is good, i. e., it will support a judgment of conviction, the motion to quash the indictment as a whole should be denied. State v. Norton, 23 N. J. Law, 33; State v. Startup, 39 N. J. Law, 423; Stephens v. State, 63 N. J. Law, 245, 21 A. 1038; State v. Castle, 75 N. J. Law, 187, 66 A. 1059; State v. Grover, 104 N. J. Law, 10,139 A. 417; Henderson v. State, 146 A. 335, 7 N. J. Misc. 520.

In the case of State v. Tilton, 104 N. J. Law, 268, at page 274, 140 A. 21, 24, Mr. Justice Kalisch said:

"Furthermore, the motion to quash an indictment is addressed to the discretion of the court, and, if the motion should prevail, the state would be left without any remedy. No appeal lies from granting or refusing a motion to quash an indictment, because such motion is of a purely discretionary character. To quash the indictment in the present case would result in letting the defendant go scot free, because of the bar of the statute of limitation to the finding of a new indictment.

"On the other hand, the defendant is fully protected in his legal rights, by going to trial, in which all the questions now raised can be raised in the court of first instance, and, if the trial results adversely to him, he may appeal from the final judgment to the Supreme Court, and, if unsuccessful there, to the Court of Errors and Appeals, but, if successful in the Supreme Court, the state would be entitled to appeal to the Court of Errors and Appeals for a review, and thus have its day in the court of last resort on the question of the validity of the indictment."

In the case of State v. Acton, 152 A. 857, 858, 9 N. J. Misc. 55, at pages 57, 58, this court held:

"It is well to add that the court is always loth to quash an indictment except on the plainest ground. State v. Johnson, 82 N. J. Law, 330, 81 A. 657; State v. Ruffu, 150 A. 249, 8 N. J. Misc. 392. It was promptly quashed before, to permit a new indictment before the statute of limitations should have run. 149 A. at page 340, 8 N. J. Misc. 198. At this writing the statute has run, and that is a most important reason to hold the indictment and leave defendant to his demurrer, on motion in arrest of judgment. State v. Tilton, 104 N. J. Law 268, 140 A. 21."

It is, of course, true that in each of the cited cases, State v. Tilton and State v. Acton, the defendant sought to quash the indictment, while in the instant case the state is seeking to review the quashing of the indictment.

It is as was said by Mr. Justice Kalisch in State v. Hart, 88 N. J. Law, 150, 151, 95 A. 362: "* * * 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 and...