Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1911-10-09
JUSTICE sWAYzE
CHARGES HUDSON
co. GRAND JURY
Dey0tes Much Attention to Re-
lease of Prisoners by
Sheriff Kelly.
Especial to the Newark STAR

JERSEY CITY, Oct ~9.-Supreme
Court Justice F. J. Swayze today
charged the elisor-drawn grand jury,
which takes the place of the one drawn
by Sheriff Kelly three weeks ago and
dismissed by Judge Swayze, owing to
the fact that its members would have
to try certain charges against the
sheriff.
The charges had to do with the re-
lease of certain prisoners from the
Hudson county jail by orders of Sheriff
Kelly, after they had been brought
there by other police officers of the
county, and grew out of the fractional
fight that ragged in Hudson county be-
fore the primary day election.
After calling attention to the fact
that there is always danger for a
sheriff or committing officer to use
John Doe" warrants in making arrests
and commitments, Justice Swayze con-
tinues:
In the present instance this is not the
case, for one warrant directed the ar
rest of Joseph Silletti, n l under
stand one of the prisoners produced
bore that name. The other warrant di-
rected the arrest of F. Cundari, and if
this was the name of the prisoner, or a
name by which he was commonly
known, sufficient to Identify him, the
warrant would be sufficient authority
to require the sheriff to receive him.
You will have to ascertain the facts in
that respect. and If you find that either
of the prisoners bore the name stated
In the warrant, or was commonly
known and Identified by that name,
you would be justified in indicting the
sheriff for a misdemeanor in failing to
receive him In pursuance of the if
tenth section of the act relating TO
sheriffs, unless you find him guilty of
the higher offense of an escape.
IF you find, however, that the war
| den, who was the sheriff's representa-
tive, had actually taken the warrants
and had begun taking the description
OF the prisoners, whether he had actu-
ally made the entries in the book or
not, you would properly conclude that
the prisoners had actually been re-
ceived; and if so. there was no vio-
lation of his section of the act relat-
ing to sheriffs, but in that case the Of
Tense of the sheriff in letting them go
after they had actually been received
by the warden would be of a higher
character. for it would be an escape.
I'm order that the sheriff may be
held for a voluntary escape it must ap-
pear that he acted with evil intent, for
If he discharged the prisoner through
erroneous advice as to the law upon
which a reasonable man might have
relied he is not guilty of the high
crime OF voluntary escape, but of the
lesser offense aoffnegligent escape.
II Understand that In this case the
sheriff acted with the advice of coun-
sci, and, while the advice of counsel is
not sufficient to excuse a man for a
commission of crime, it has IN i'm
portant bearing upon the question of
the evil intent with which the sheriff
acted, and if in good faith he acted
upon the advice of counsel, even
though that advice was erroneous, I'M
he is guilty of negligent scape he
ought not to be indicted for the more
serious offense of a voluntary escape.
but for the lesser offense of a negligent
escape.
THE prosecutor will also call your at
tention to matters growing out of the
building of this Court House. I have
dealt with this subject at length quite
recently in a charge to another grand
jury, and the legal questions that may
arise do not, I think, call for special
mention at this time. If at any time
you desire instructions on any question
that may arise the court will be glad
to give you any assistant we can.
"A charge has been made in the
newspapers within the last three or
four days that frauds have been com
mitted in the supplying of coal to the
Soldiers Home at Kearny. These
charges are attributed to the superin-
tendent Of the home, a responsible gen
tleman. 1t is proper to say that the
truth of the charges is denied by the
gentlemen implicated. You ought, how
ever, to investigate this matter, and if
you find that the State has been de-
frauded you ought to present indict-
ments. If you find that 1t has not
bee. %defrauded the gentlemen against
whom the charges are made are en-
titled to the benefit of that finding