Bullock v. State

Decision Date06 September 1900
Citation65 N.J.L. 557,47 A. 62
PartiesBULLOCK v. STATE.
CourtNew Jersey Supreme Court

Error to court of oyer and terminer. William Bullock was convicted of murder, and he brings error. Reversed.

George C. Beekman and William J. Leonard, for plaintiff in error.

John E. Foster, for the State.

DEPUE, C. J. The first assignment of error is directed to the form of the indictment. The indictment contains two counts: First, a count in the statutory form prescribed by the forty-fifth section of the act regulating proceedings in criminal cases (Revision, p. 275; P. L. 1898, p. 879, § 36). In this count the statutory language was followed, charging that the accused, "willfully, feloniously, deliberately, and of his malice aforethought, did kill and murder, contrary to the form of the statute in such case made and provided," etc. This form of indictment has been held to be sufficient to charge the crime of murder in the first degree. Graves v. State, 45 N. J. Law, 203; Id. 347. The second count charges that the accused did "willfully and feloniously kill one James Walsh, he then and there being one of the constables of the said county, and then and there being in the execution of his office and duties as such constable." An indictment in the statutory form prescribed by section 45 of the criminal procedure act (Revision, p. 275; P. L. 1898, p. 879, § 30) is a sufficient indictment for the killing of an officer in the execution of his office, and it is not necessary that the indictment should contain the allegation that the deceased was an officer. Brown v. State, 62 N. J. Law, 666, 42 Atl. 811. The criticism on the second count is purely formal. Either count is sufficient to sustain the present conviction.

The indictment was found in the court of oyer and terminer of the county of Monmouth, and set down for trial at the term of January, 1900. On the 20th day of February, as yet of that term, on the application of the prisoner the court made an order that a jury be struck for the trial of the indictment at the then present term of the court. In pursuance of this order a jury was struck, and the accused was placed on trial before such jury; and the jury, failing to agree, was discharged by the court. Afterwards, at the May term, the court, on the application of the prosecutor, upon due notice to the counsel of the accused, ordered that the rule for a struck jury be vacated. To this order the counsel of the accused excepted, and the case was tried by a jury taken from the general panel summoned for service at that term of the court. By section 18 of the act concerning juries (Revision, p. 527) it was enacted that the supreme court, the circuit courts, the courts of common pleas, courts of oyer and terminer, and the courts of general quarter sessions of the peace, respectively, may, on motion in behalf of the state, or of any prosecutor or defendant in any indictment or information in the nature of a quo warranto, or on motion in behalf of the state, or of any plaintiff or defendant, in any action triable by a jury, order a jury to be struck for the trial thereof, etc. Section 19 provides that "if a rule for a struck jury shall be entered in any cause it shall remain in force until the cause shall be tried, and no common jury shall be summoned therein, unless the said rule shall be first vacated by the court," etc. These statutory provisions vest in the court a discretion to order a struck jury, and to vacate such an order when it has been made. A party in either a civil or criminal case has no vested or legal right to choose which of the two methods provided at law for the selection of juries for the trial of a civil or criminal case shall be adopted by the court, and therefore has no ground of exception to the order of the court for the selection of jurors in the manner provided by law. Having no legal or vested right to a choice in the manner of convening the jury provided by law, the prisoner was not, by the order of the court discharging the rule for a struck jury, deprived of any right which could, in a legal sense, be considered either a "manifest wrong or injury," within the purview of section 136 of the act of 1898, p. 915.

The accused is a colored man. On the return of the panel of jurors the defendant's counsel challenged the array on the ground that there was no colored man returned on the panel. This challenge was overruled, and an exception taken. The contention of the counsel of the plaintiff in error in support of this exception was that the accused had been denied civil rights guarantied to him by the fourteenth amendment to the constitution of the United States. The language of that amendment pertinent to this subject is contained in section 1, as follows: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." This provision relates to state action exclusively, and was designed as a protection against acts of the state, and not the acts of persons. Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357; Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394; U. S. v. Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. Ed. 290; Strauder v. West Virginia, 100 U. S. 303, 312, 25 L. Ed. 664; Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075; Neal v. Delaware, 103 U. S. 370, 391, 26 L. Ed. 567. A statute of the state which restricts the class of citizens who shall be liable to serve as jurors to white persons would be a violation by the state of this constitutional provision. The statute of this state in relation to juries is not open to such an objection. The qualification of jurors, grand or petit, prescribed by the statute, is that every juror shall be a citizen of this state, and resident in the county from which he shall be taken, and above the age of 21 and under the age of 65; and the sheriff is required to select as the panel of jurors for the trial of cases, civil and criminal, from the persons qualified to serve as jurors, the names of at least twice as many persons as he shall deem necessary to be summoned as jurors. Revision, pp. 532, 533. "If the subordinate officer whose duty it is to select jurors fails to discharge that duty in the true spirit of the law; if he excludes all colored men solely because they are colored; if the sheriff to whom a venire is given, composed of both white and colored citizens, neglects to summon the colored jurors only because they are colored, or if a clerk whose duty it is to take the twelve names from the box rejects all the colored jurors for the same reason,"—as was said by Mr. Justice Strong in Virginia v. Rives, "it can with no propriety be said that the defendant's right is denied by the state and cannot be enforced in the judicial tribunals. The court will correct the wrong, will quash the indictment or the panel, or, if not, the error will be corrected in a superior court. * * * The assertions in the petition for removal that the grand jury by which the petitioners were indicted, as well as the jury summoned to try them, were composed wholly of the white race, and that their race had never been allowed to serve as jurors in the county in any case in which a colored man was interested, fall short of showing that any civil right was denied, or that there had been any discrimination against the defendants because of their color or race. The facts may have been as stated, and yet the jury which indicted them, and the panel summoned to try them, may have been impartially selected." In Johnson v. State, a colored man was indicted for murder. Error was assigned in the exclusion of negroes from jury duty. Nothing appeared, except that no colored men were returned on the panel of jurors. It was held by the supreme court and by this court that upon the trial of a colored man the absence of negroes from the panel of jurors is not error, in the absence of proof that this exclusion was done designedly, or that such persons were omitted except in the same way that white citizens not selected were omitted. 59 N. J. Law, 271, 35 Atl. 787; 59 N. J. Law, 536, 540, 37 Atl. 949, 39 Atl. 646, 38 L. R. A. 373. There were no colored men returned on this panel of jurors, but the evidence falls far short of showing that they were designedly excluded on account of color by the sheriff in making up his jury list.

Another exception was directed to the admission in evidence of a confession by the prisoner. The killing of the deceased occurred on the 13th of November, about 4 o'clock in the afternoon. The accused immediately fled, and was arrested at South Amboy about half past 11 o'clock the same night by William McDonald, a policeman at South Amboy. It appears from the testimony of McDonald that after he, in connection with Officer Menagh, of South Amboy, had searched the prisoner and put him in jail, either Menagh or his son said to the prisoner, in the presence of those officers, that he had better tell all about it, and that it would be easier for him. McDonald said, "That is the way they worked it on him." A confession procured under such circumstances would be clearly incompetent as evidence, but no confession made to either of these officers was put in evidence. Their conduct in this respect was reprehensible, but is important only in its effect upon what occurred subsequently. Stryker, the chief of police of Red Bank, went to South Amboy to arrest the prisoner. He arrived at the lockup at South Amboy about 4 o'clock in the morning. He hunted up the South Amboy officers, and with them went to the town hall. An offer was made on behalf of the state of the confession made by the prisoner to this witness. On the preliminary examination to ascertain the competency of...

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