In Re Ellenstein

These are applications for writs of certiorari to remove into this court indictments returned against the above named defendants in the Essex Oyer and Terminer, at the September term, 1937. They are grounded (a) in two matters dehors the indictments, i.e., (1) asserted errors in the charge delivered to the grand jury, prejudicial to their fundamental rights, and (2) the claimed presentation to that body, likewise to the prejudice of their substantial rights, of the report and findings of Warren Dixon, Esquire, as an expert appointed by Mr. Justice Parker, under the provisions of chapter 3 of the laws of 1907, as amended and supplemented, to investigate alleged unlawful expenditures of moneys of the city of Newark; (b) defects alleged to appear upon the face of the indictments; and (c) the alleged attendance of an unauthorized person upon the grand jury during its deliberations.

Our examination of the briefs submitted by the respective parties satisfies us that the questions so raised are fairly debatable, and that, under all the circumstances, the indictments should be brought into this court for the purpose of making motions to quash upon the above-mentioned grounds only.

The defendants do not assign, as a reason for quashing the indictments, that there was no competent evidence before the grand jury tending to show the commission of the crimes charged; and such an inquiry is not to be had. In fact, they agree that this limitation should be imposed.

Writs of certiorari are accordingly allowed to remove the indictments into this court for the purpose of making motions to quash limited to the grounds stated above; and the allocaturs will be so conditioned.