James Brown v. State of New Jersey

Citation20 S.Ct. 77,44 L.Ed. 119,175 U.S. 172
Decision Date20 November 1899
Docket NumberNo. 290,290
PartiesJAMES K. BROWN, Plff. in Err ., v. STATE OF NEW JERSEY
CourtUnited States Supreme Court

The plaintiff in error was, on October 5, 1898, in the court of oyer and terminer of Hudson county, New Jersey, found guilty of the crime of murder. On March 6, 1899, the judgment of the court of oyer and terminer was affirmed by the New Jersey court of errors and appeals, and the case being remanded to the trial court plaintiff in error was, on April 19, 1899, sentenced to be hanged. The jury which tried the case was what is known to the New Jersey statutes as a 'struck jury,' authority for which is found in chap. 237, p. 894, Laws of New Jersey (1898). Sections 75 and 76 read as follows:

'Sec. 75. The supreme court, court of oyer and terminer, and court of quarter sessions, respectively, or any judge thereof, may, on motion in behalf of the state, or defendant in any indictment, order a jury to be struck for the trial thereof, and upon making said order the jury shall be struck, served, and returned in the same manner as in case of struck juries ordered in the trial of civil causes, except as herein otherwise provided.

'Sec. 76. When a rule for a struck jury shall be entered in any criminal case, the court granting such rule may, on motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and for the county in which any indictment was found, whether the names of such persons appear on the sheriff's book of persons qualified to serve as jurors in and for such county or not, ninety-six names, with their places of abode, from which the prosecutor and the defendant shall each strike twenty-four names in the usual way, and the remaining forty-eight names shall be placed by the sheriff in the box, in the presence of the court, and from the names so placed in the box the jury shall be drawn in the usual way.'

By §§ 80 and 81 of that statute, where there is no 'struck jury' and the party is on trial for murder, he is entitled to twenty peremptory challenges and the state to twelve, but in the case of a 'struck jury' each party is allowed only five peremptory challenges.

Messrs. William D. Daly and Joseph M. Noonan for plaintiff in error.

Mr. James S. Erwin for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

That the statutory provisions for a struck jury are not in conflict with the Constitution of New Jersey is for this court foreclosed by the decision of the highest court of the state. Louisiana v. Pilsbury, 105 U. S. 278, 294, 26 L. ed. 1090, 1095; Hallinger v. Davis, 146 U. S. 314, 319, 36 L. ed. 986, 989, 13 Sup. Ct. Rep. 105; Forsyth v. Hammond, 166 U. S. 506, 41 L. ed. 1095, 17 Sup. Ct. Rep. 665.

The first ten Amendments to the Federal Constitution contain no restrictions on the powers of the state, but were intended to operate solely on the Federal government. Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672; Fox v. Ohio, 5 How. 410, 12 L. ed. 213; Twitchell v. Pennsylvania, 7 Wall. 321, 19 L. ed. 223; United States v. Cruikshank, 92 U. S. 542, 552, 23 L. ed. 588, 591; Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Re Sawyer, 124 U. S. 200, 219, 31 L. ed. 402, 408, 8 Sup. Ct. Rep. 482; Eilenbecker v. Plymouth County Dist. Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424; Davis v. Texas, 139 U. S. 651, 35 L. ed. 300, 11 Sup. Ct. Rep. 675; McElvaine v. Brush, 142 U. S. 155, 35 L. ed. 971, 12 Sup. Ct. Rep. 156; Thorington v. Montgomery, 147 U. S. 490, 37 L. ed. 252, 13 Sup. Ct. Rep. 394; Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874.

The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution. Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148; Iowa C. R. Co. v. Iowa, 160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. 'The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its modes of judicial proceeding.' Missouri v. Lewis, 101 U. S. 22, 31, 25 L. ed. 989, 992.

The state is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. Subject to the limitations heretofore named it may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary. For instance, while at the common law an indictment by the grand jury was an essential preliminary to trial for felony, it is within the power of a state to abolish the grand jury entirely and proceed by information. Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292.

In providing for a trial by a struck jury, impaneled in accordance with the provisions of the New Jersey statute, no fundamental right of the defendant is trespassed upon. The manner of selection is one calculated to secure an impartial jury, and the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury. 'The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. Northern P. R. Co. v. Herbert, 116 U. S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590. The right to challenge is the right to reject, not to select, a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained.' Hayes v. Missouri, 120 U. S. 68, 71, 30 L. ed. 578, 580, 7 Sup. Ct. Rep. 350.

Due process and equal protection of the laws are guaranteed by the Fourteenth Amendment, and this amendment operates to restrict the powers of the state, and if trial by a struck jury conflicts with either of these specific provisions it cannot be sustained. A perfectly satisfactory definition of due process may perhaps not be easily stated. In Hurtado v. California, supra, page 537, L. ed. 239, Sup. Ct. Rep. 121, Mr. Justice Matthews, after reviewing...

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