Ex parte Tremper

• Citation: 129 N.J.Eq. 274,19 A.2d 342
• Decision Date: 13 February 1941
• Docket Number: No. 205.,205.
• Parties: Ex parte TREMPER et al.
• Court: United States State Supreme Court (New Jersey)

19 A.2d 342

129 N.J.Eq. 274

Ex parte TREMPER et al.

No. 205.

Court of Errors and Appeals of New Jersey.

Feb. 13, 1941.

Syllabus by the Court.

At the trial of three defendants indicted for murder, a juror became too ill to continue, and by consent of defendants and their counsel and of the prosecuting attorney, the trial was continued by the court with eleven jurors, and resulted in convictions within the scope of the indictment. No writ of error was sued out, but over four years later defendants obtained a writ of habeas corpus which, after argument, was discharged. Held, that the writ will not lie where the trial court had jurisdiction of the parties and of the subject matter; and that the continuation of the trial with eleven jurors was a trial error, and did not oust the jurisdiction of the court.

Appeal from Court of Chancery.

Proceeding in the matter of the application of Donald L. Tremper and others for a writ of habeas corpus. From an order advised by Vice Chancellor Buchanan, whose opinion was reported in 126 N.J. Eq. 276, 8 A.2d 279, Donald L. Tremper and others appeal.

Order affirmed.

Arthur C. Mullen, of Jersey City, for appellants.

Joseph Lanigan and Joseph A. Murphy, Asst. Attys. Gen., and Leo Robbins, Pros. of the Pleas, of Lakewood, for the State.

PARKER, Justice.

The appellants, jointly indicted for murder, pleaded not guilty, and in due course the matter came on for trial with a traverse jury. In the course of the trial a juror fell ill, and it was consented in open court, and with the express approval of the prisoners, that the trial proceed with eleven jurors. This was done: There was a verdict, as to one of the appellants of guilty of murder in the first degree with recommendation of life imprisonment, R.S. 2:138-4, N. J.S.A. 2:138-4, and as to the other two, guilty of murder in the second degree. Sentence was pronounced accordingly, and since the trial, which was in 1934, the defendants have been confined in the State prison.

The trial with eleven jurors was of course manifest error, as to which there is no difference of opinion and as to which citation of authority is superfluous. The obvious duty of the trial court was either to recess the case until the juror should recover, which, of course, would mean a continued sequestration of the eleven other jurors and court supervision of the invalid, or preferably to declare a mistrial, discharge the jury and issue a venire de novo. And the error was not such as could be cured or waived by any consent. In State v. O'Leary, 110 N.J.L. 36, 163 A. 904, we held that the sequestration of the jury in a murder trial was a requirement which neither court nor defendant can waive, and that non-compliance with the rule requires no exception to support a review. The reasoning of that case applies even more strongly here.

As we understand the facts, which in the following particular are of course matter of record, no writ of error was sued out by the defendants or by any of them, and as already noted, they have been since confined in the State Prison. As noted in the opinion of the court below (126 N.J.Eq. at page 284, 8 A.2d 279), the time for taking out a writ of error had long since expired, the limit being one year; but more than four years after the conviction, the present appellants applied to the Court of Chancery for a writ of habeas corpus, on the ground that the conviction on verdict of eleven jurors was illegal, and necessarily on the further ground that by continuing the trial with eleven jurors the court of Oyer and Terminer had lost jurisdiction of the cause and that appellants were...