Jackson v. State

• Citation: 9 A. 740,49 N.J.L. 252
• Parties: JACKSON v. STATE.
• Decision Date: 24 May 1887
• Court: United States State Supreme Court (New Jersey)

9 A. 740

49 N.J.L. 252

JACKSON

v. STATE.

Supreme Court of New Jersey.

May 24, 1887.

(Syllabus by the Court.)

On writ of error to Passaic court of quarter sessions.

Argued before the Chief Justice and Justices Depue, Vansyckel, and Scudder.

John W. Griggs, for plaintiff in error.

William B. Gourley, contra.

DEPUE, J. The plaintiff in error was convicted before the Passaic quarter sessions upon an indictment for an assault with intent to kill and murder. On being charged on the indictment, the defendant was admitted to bail for his appearance for trial. He was present at the trial, and appeared by counsel, and was also present when judgment was pronounced.

The errors assigned upon the record are—First, that the verdict was rendered in the absence of the accused and his counsel. The judges of the court certified in the return to the writ of certiorari that the judges do not remember whether the accused or his counsel was present when the verdict was rendered, and that they took no means to have the accused or his counsel present when the verdict was rendered, other than "by keeping the court open so that they both might have been present when said verdict was rendered, if they had chosen to be." The accused was still out on bail when the verdict was rendered. The condition of the recognizance of bail was that he should appear before the court from day to day, and not depart the court without leave. The absence of the accused at that juncture was a breach of the condition of his recognizance, and he might have been called, and a forfeiture entered.

At common law, in felony or treason, the verdict must be given in open court, and no privy verdict could be given, (2 Hale, 300;) or, as was said by Sir Edward Coke, in criminal cases of life or member the jury can give no privy verdict, but they must give it openly in court, (Co. Litt. 2276.) Bex v. Ladsingham, T. Raym. 193, is the leading case on the subject. The objection in that case was that to give a privy verdict in any criminal case was contrary to Co. Litt. 2276. To this the court answered: "It is intended that no privy verdict can be given in criminal cases which concern life, as felony, because the jury are commanded to look upon the prisoner when they give their verdict, and so the prisoner is to be there present at the same time." Mr. Chitty states the rule to be that in all cases of felony and treason the verdict must be delivered in the presence of the defendant in open court, and cannot be privily given or promulgated in his absence; and in all cases where the jury are commanded to "look on him," as in larceny and accusations subjecting him to any species of mutilation or loss of limb, the same rule applies. But in trials for inferior misdemeanors a privy verdict may be given, and there is no occasion for the presence of the defendant. 1 Chitt. Crim. Law, 636. At common law larceny was felony, and, if the property feloniously stolen exceeded 12 pence in value, the punishment was death. 4 Bl. Comm. 237. The rule derived from the common-law authorities is that in criminal cases the character of the punishment determines the power of the jury to render a privy verdict, or, what is the same thing, a verdict in the absence of the defendant; and the circumstance that takes away such power is that the case is one involving life or member. Co. Litt. 2276; 4 Hawk. P. C. 489; 4 Bl. Comm. 360; 10 Bac. Abr. 308, "Verdict," B. An assault with intent to commit murder was not at common law a felony. In the earliest ages of our law, (says Mr. East,) it seems to have been considered that the bare attempt to commit murder was felony; but that idea was soon exploded, though the attempt is punishable as a high misdemeanor at common law. 1 East, P. C. 411; Bacon's Case, 1 Lev. 146; Com. v. Barlow, 4 Mass. 439; 2 Bish. Crim. Law, §§ 56, 743; 2 Whart. Crim. Law, § 1287.

The Criminal Code of this state wholly ignores the distinction between felonies and misdemeanors. Statutory...