Gardiner v. State

• Decision Date: 08 November 1892
• Parties: GARDINER v. STATE.
• Court: New Jersey Supreme Court

26 A. 30

55 N.J.L. 17

GARDINER

v. STATE.

Supreme Court of New Jersey.

Nov. 8, 1892.

(Syllabus by the Court.)

Error to court of quarter sessions, Essex county; Kirkpatrick, Led with, and Buttner, Judges.

Lucy Gardiner was convicted of larceny, and brings error. Affirmed.

Argued before the CHIEF JUSTICE, and DEPUE and VAN SYCKEL, JJ.

W. D. Daly and Theo. F. Ryerson for plaintiff in error.

Samuel Kaliseh, for the State.

DEPUE, J. The first assignments of error are founded on the decision of the court overruling a challenge to the general panel of jurors. A challenge to the array is an exception to the whole body of jurors upon the panel summoned and returned for service at the term, and is grounded upon some default of the sheriff or other officer making the return in drawing or returning the jurors, or for partiality or misconduct in performing the duties. Co. Litt. 156a, 150b; 3 Burn. J. P. "Juries," 962; Thorap. & M. Jur § 126. The specification of the cause of challenge is that the sheriff did not procure and keep in his office a list of the names of the persons in his county qualified in law, with their places of abode, etc., open for the inspection of persons who desired to inspect and examine the same, as required bylaw. The challenge concludes that the sheriff's failure to make out and complete by the 1st day of January, 1891, a list of the names of the persons who, in said county of Essex, are qualified to serve as jurors therein, with their places of abode, by designating their respective townships and wards, deprives the accused of the benefit of a statutory right enabling her to inquire before the trial into the qualifications aforesaid, and to investigate the circumstances of the selection of the persons on such list, from which list the jurors are taken for her trial, thereby tending to prejudice and prevent her trial by an impartial jury, in violation of the constitution of the state of New Jersey. There was another specification inserted in the written challenge,—that of the 55 jurors drawn and returned as the panel for that term, 53 were from the city of Newark, and none from other localities in the county. No challenge was preferred imputing to the sheriff unfairness or misconduct in preparing the list of names from which the general panel was drawn, and there is no statute or law requiring the jurors as drawn to come from the several political divisions of the county. For aught that appears, it may have been that in the original list there was a fair apportionment of names among the several political divisions of the county, anil the preponderance of jurors from Newark on the panel may have resulted from the drawing of the names from the box. The third section of the act of April 21, 1876, makes it the duty of the sheriff to procure every year, at his own expense, a list of the names of the persons who in his county are qualified to serve as jurors, with their places of abode, designating their respective townships and wards; said lists to be made out and completed by the 1st day of January of each year, and kept in the office of the sheriff, open to the inspection of all persons who may wish to examine the same, without charge. In this section it is further provided that any sheriff who shall neglect or refuse to comply with any or all of the provisions of this section shall forfeit the sum of $500 for every such offense; the one half to bepaid to the state, and the other half to any person who shall prosecute the same, to be recovered, with costs, by action of debt in any court of record having cognizance of that sum. Revision, p. 532, § 42. The testimony taken in support of the challenge shows that there were lists of jurors made out by former sheriffs, kept in the sheriff's office, but none made by the sheriff then in office, and that it was customary for sheriffs to adopt the lists kept by their predecessors. It must be assumed that the lists then in the office were incomplete and imperfect, and it was shown that such lists were not used by the sheriff in selecting the names of qualified jurors from which the general panel was drawn. The moot question is whether the neglect of the sheriff to provide this list for use in his office, in conformity with section 3 of the statute, of itself will invalidate the panel drawn and certified to, without any proof of the sheriff's misconduct in preparing the list of names from which the general panel was drawn.

The fifth section of the act requires the sheriff, on the fourth Tuesday before the commencement of the regular term of the court, at the courthouse, in the presence of the county clerk and before the court of common pleas, to select "from among the residents of the county qualified to serve as jurors" the names of at least twice as many persons as the court shall deem necessary to be summoned as jurors, and then, in the presence of the clerk and the court, in an open and public manner, to draw out of the box separately as many of the papers on which the names of such qualified jurors are written, respectively, as the said court shall deem necessary to be summoned, etc.; two lists of the names to be certified to as the panel of jurors selected to serve, etc., under the hands of the judges of the court of common pleas, or a majority of those present, who shall also certify that the jurors named in the said lists were selected in all respects according to the provisions of the said act. The section also enacts that, "if the judges of the said court of common pleas, or a majority of those present at the time, shall not certify as required by this section, it shall be good ground for a challenge to the array of jurors." Revision, p. 533, § 44. The section just referred to contains the only prescription of the persons from whom the jurors shall be selected, and the mode in which the general panel shall be drawn. The persons whose names are to be selected and written on the ballots are "residents of the county qualified to serve as jurors," without any qualification with respect to their names being found on the list kept in the sheriff's office; and the certificate of the court is made the evidence that the jurors named in the lists certified to were selected in all respects according to the provisions of the act. The third section, which makes it the sheriff's duty to prepare and keep in his office a list of the names of persons qualified to serve as jurors, imposes a penalty upon the sheriff for the failure to perform that duty, but neither expressly nor by implication invalidates the panel of jurors drawn in compliance with the fifth section as a consequence of the sheriff's neglect. If the jurors are in fact selected from the residents of the county qualified to serve as jurors, as prescribed by the latter section, the panel of jurors is lawfully constituted, without regard to the presence or absence of a list in the sheriff's office, or imperfections in the list so kept. In that respect the third section is directory only. It was so, in effect, held in Maffett v. Den, 6 N. J. Law, 228. And in Poulson v. Bank, 40 N. J. Law, 563, the court of errors held that the provisions of the act of April 21, 1376, as to the proceedings in the selection of jurors, are all merely directory, except that which requires the certificate of the judges. The general rule is that statutory provisions respecting the preparation of lists and the drawing of the panel are regarded as directory only, and that irregularities therein are no ground of challenge, unless they are such as plainly operated to the prejudice of the challenging party. 1 Thomp. Trials, § 33; Thomp. & M. Jur. §§ 134-139.

Another ground of challenge to the array was that the court of common pleas before which the general panel was drawn was not legally constituted. If that ground of challenge be true in fact, it is fatal. Patterson v. State, 48 N. J. Law, 382, 4 Atl. Rep. 449. At the session of the court at which the general panel was drawn, the law or presiding judge of the court of common pleas was absent from the state, and the justice of the supreme court assigned to that circuit presided in his absence. The certificate so recites. The certificate is in all respects in conformity with the statute, and is signed by the presiding justice of the supreme court and one of the lay judges of the court. This objection is not tenable. Engeman v. State, 54 N. J. Law, 247, 23 Atl. Rep. 676.

The defendant was convicted under the first count of the indictment. That count is founded upon section 129 of the crimes act, (Revision, p. 250.) This section is in these words: "If any person shall steal of the money or personal goods and chattels of another of or above the price or value of twenty dollars, every person so offending shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding live hundred dollars, or imprisonment at hard labor not exceeding ten years, or both." The indictment charges that the said L. G., on the 23d day of December, 1890, with force and arms, at, etc., certain goods and chattels, describing them, and the value of each, in all of the value of $21.75, the goods and chattels of J. S., etc.,"unlawfully did steal, take, and carry away, contrary to the form of the statute in such case made and provided." The objection made to this count is that it is not charged that the act was done feloniously, or with felonious intent. No motion was made to quash the count on this ground, and the objection was taken at the close of the case, on a motion to direct an acquittal on the ground that no criminal offense was charged. In the classification of criminal offenses at common law, felony was a nomen generalis, which comprised all offenses which occasioned a forfeiture of either lands or goods or both, to which capital or other punishment was superadded, according to the degree of guilt. 1 Bouv. Law Dict. tit. "Felony," 517; 4 Bl. Comm. 95. In...