Brown v. State

• Decision Date: 06 March 1899
• Citation: 62 N.J.L. 666,42 A. 811
• Parties: BROWN v. STATE.
• Court: New Jersey Supreme Court

42 A. 811

62 N.J.L. 666

BROWN

v. STATE.

Court of Errors and Appeals of New Jersey.

March 6, 1899.

Error to court of oyer and terminer, Hudson county; before Justice Lippincott.

James K. Brown was convicted of murder, and he brings error. Affirmed.

William D. Daly and T. F. Noonan, Jr., for plaintiff in error.

James S. Erwin, for the State.

DEPUE, J. The plaintiff in error was indicted for the murder of Charles Gebhardt, a police officer of the city of Hoboken. The indictment was found in the court of oyer and terminer of the county of Hudson. It contained two counts: First, the statutory form prescribed by section 45 of the act regulating proceedings in criminal cases. Revision, p. 275 (P. L. 1808, p. 866, § 36). The second count is in the common-law form, charging the killing to have been done "willfully, unlawfully, feloniously, deliberately, premeditatedly and with malice aforethought." The contention is that, in order to charge the act of killing for which the accused was put on trial, the allegation should have been of the killing of a police officer. This contention is without substance. An indictment in the statutory language, that the defendant did "willfully, feloniously, and with malice aforethought kill and murder the deceased," is sufficient. Graves v. State, 45 N. J. Law, 203, 347; Titus v. State, 40 N. J. Law, 36, 7 Atl. 621. At common law, and independently of our statute, an indictment for killing an officer might well be in form general, that the prisoner felonice, voluntarie, et ex malitia fua præcognitia, etc., without alleging any special matter. Mackalley's Case, 9 Coke, 67.

The accused was tried before a struck jury, and was convicted of murder of the first degree. The statute under which the jury in this case was struck confers on the supreme court, court of oyer and terminer, and court of quarter sessions, or on any judge thereof, on motion on behalf of the state or the defendant in any indictment, power to order a jury to be struck for the trial thereof, and provides that upon making such order the jury shall be struck, served, and returned in the same manner as in the case of struck juries ordered in the trial of civil cases, except as by the act provided. P. L, 1898, p. 894, § 75. The order for a struck jury in this instance was made by the court on the application of the prosecutor. The method in which the jury is struck in civil cases is found in the Revision, and is substantially the same as the method of striking juries in England. The party applying for such struck jury is required to give six days' previous notice to the adverse party or his attorney, and to the judge, sheriff, or other officer, of the time and place of striking such jury, at which time and place the judge shall, in the presence of the parties or their agents or attorneys, or such of them as shall attend for that purpose, select and transcribe the names of 48 persons so qualified, with their places of abode, "as he shall think most impartial and Indifferent between the parties, and best qualified as to talents, knowledge, integrity, firmness and independence of sentiment, to try the said cause"; and thereupon the party applying for such jury, his agent or attorney, shall first strike out one of the said names, and then the adverse party, his agent or attorney, shall strike out another, and so on alternately, until each shall have stricken out 12; but if the adverse party shall not attend such striking, nor any person in his behalf, then the judge shall strike for him; and when each shall have stricken out 12, as aforesaid, the remaining 24 shall be the jury to be returned to try the said cause, which list shall be delivered to the sheriff or other officer who ought to summon such jury, together with the venire facias, by the person applying for such jury, etc., at least 10 days prior to the day appointed for the trial of said cause; and such sheriff or other officer shall thereupon annex the said list to the said venire facias, and return the same as the panel of the jury to try the said cause, and summon them according to the command of the writ. Revision, p. 527, §§ 18-26; 2 Gen. St. p. 1849. The act of 1898, in its modification of the law relating to struck juries in criminal cases, provides for the selection of 96 persons in the list from which the jury is to be struck, and provides that 24 names shall be struck by the prosecutor and by the accused, respectively, in the usual manner, and the remaining 48 names shall be returned as the panel of jurors, and the names placed in the box by the sheriff, and the jury for the trial of the case be drawn in the usual way. P. L. 1898, p. 895, § 76. This act further provides that, on the trial of any indictment for which a struck jury shall be summoned and returned, five peremptory challenges shall be allowed to the defendant, and the same number to the state. Id. p. 896, § 81. By 22 Hen. VIII. c. 14, persons indicted for petit treason, murder, or felony were admitted to challenge peremptorily 20 of the jurors returned. This statute was in force in England at the time of the Revolution. By act of the legislature passed in 1795, it was provided that every person indicted for treason, murder, or other crimes punishable with death, or for misprision of treason, manslaughter, sodomy, rape, arson, burglary, robbery, or forgery, was admitted to challenge peremptorily 20 of the jurors; and it was further provided that neither the attorney general nor any person prosecuting for or in behalf of the state should be admitted in any case to challenge any juror without assigning a cause certain, and that the privilege of peremptory challenges should not be allowed to offenders in any cases except such as are specified above. R. L. p. 184. These provisions are contained in section 6 of the Revision of 1845, with the addition thereto of perjury and subornation of perjury. Rev. St. p. 294. Struck juries were allowed in England in the trial of civil cases from an early period, and by 3 Geo. II. c. 25, were authorized in criminal cases on the trial of an indictment or information for any misdemeanor or information in the nature of quo warranto. The statute did not apply to indictments for treason or felony, and consequently a special jury in England was not allowed in cases of treason or felony. 21 Vin. Abr. p. 301, tit. "Trial" (D, e, 2). This statute was embodied in the act of 1797 as section 14, with the proviso that it should "not extend to any indictment for any offense where the party is entitled to challenge peremptorily or without cause shown" (R. L. p. 313), and was included in the act concerning juries and verdicts in the Revision of 1845 (Rev. St. p. 908). In the Revision of 1874 it was embodied in the act concerning juries, without the exception contained in section 14 of the act of 1797, and the right to order a struck jury was thereby conferred on the trial of any indictment. Revision, p. 527, § 12. The statutory provisions with respect to struck juries, as contained in the Revision of 1874, were retained in the act of 1898, with modifications with respect to the number of jurors to be selected, and the number to be struck by the prosecutor and the accused, respectively, and also allowing to the prosecutor and the accused each five peremptory challenges. P. L. 1898, pp. 894-896, §§ 75-81. Peremptory challenges allowed to the accused on the trial of criminal cases are now regulated by sections 80 to 83, inclusive, of the act of 1898. Every person indicted for treason, murder, etc., is admitted to challenge peremptorily 20 of the jurors summoned, and the state is entitled to challenge peremptorily 12; and, on the trial of an indictment where 20 peremptory challenges are not allowed, the defendant and also the state are entitled each to challenge peremptorily 10 of the general panel of jurors summoned and returned. These two provisions do not apply to trials where a struck jury is ordered. In such cases the number of peremptory challenges allowed as the jury is drawn from the box is limited to 5 by the defendant, and the same number by the state. The record shows that application was made to the court by the prosecutor of the pleas for a struck jury, and that the court granted the motion, and fixed September 12th as the time for striking, and directed notice to be given for that day. On that day the counsel of the prisoner appeared, and objected to the striking of the jury on the ground that the statute under which the jury was to be struck was unconstitutional and void. The court overruled the objection, and exception was taken.

By Const. 1776, art 22, it was provided "that the inestimable right of trial by jury shall remain confirmed as part of the law of this state without repeal forever." The provisions on this subject in Const. 1844, art 1, § 7, are as follows: "The right of a trial by jury shall remain inviolate, but the legislature may authorize the trial of civil suits when the matter in dispute does not exceed fifty dollars by a jury of six men." Section 8 provides that "in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense."

Two grounds are alleged in the brief of the counsel of plaintiff in error for the contention that the act of 1898 is unconstitutional: First, because the crime with which he was charged was a felony at common law, and a struck jury could not be had at common law in cases of felony, and hence under our constitution the legislation for struck juries in capital cases is unconstitutional; second, that, being tried by a struck jury, the accused was deprived of his common-law right of 20 peremptory challenges.

Trial by jury, as the means of determining...