Patterson v. State

• Decision Date: 10 June 1886
• Citation: 48 N.J.L. 381,4 A. 449
• Parties: PATTERSON v. STATE.
• Court: New Jersey Supreme Court

4 A. 449

48 N.J.L. 381

PATTERSON

v. STATE.¹

Supreme Court of New Jersey.

June 10, 1886.

In error.

Wm. T. Hoffman and R. T. Stout, for plaintiff in error.

Chas. Haight and John W. Swartz, for defendant.

VAN SYCKEL, J. The defendant below was convicted in the Monmouth quarter sessions of forgery. During the progress of the trial many exceptions were taken for alleged errors in the proceedings, which constitute the grounds upon which a reversal of judgment is asked for.

In the early days of English criminal jurisprudence, when even a trifling larceny was punishable with death, there was reason why the judicial mind should exhaust its ingenuity in aid of the defense, and seize upon every technicality to avert from the prisoner a punishment so disproportionate to his crime. In our time a more humane system of criminal law has been adopted, which graduates the punishment according to the magnitude of the offense, and in which there is nothing to shock our sense of justice. The reason for resorting to mere technicality to enable the criminal to evade the sanctions of the law no longer exists, and the practice to which that reason led should therefore cease. Men who make their lives a scourge to society must answer its violated laws, and can justly demand in a judicial tribunal nothing except a fair trial according to the laws of the land, in which no substantial right is denied them. The legislation of our state has given expression to this view in the eighty-seventh section of the criminal procedure act, in the following language: "No judgment given upon any indictment shall be reversed for any imperfection, omission, defect in or lack of form, or for any error, except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits." It is of the utmost importance to society that its criminal classes shall understand that the penalty surely follows the crime. With these convictions, I enter upon the consideration of the questions involved in this controversy.

The criminal procedure act provides that the defendant shall have a copy of the indictment and a list of the jury two entire days at least before the trial, and that he shall not be put upon his trial without his consent deliberately expressed in open court, unless he had such jury-list duly served. The first error assigned is that the record does not show that a copy of the indictment and list of jurors was served as required by the statute. The answer is that the record need not show compliance with the statute in this respect. The presumption is all things were rightly done. The defendant knew his rights, and, if he proceeded to trial without objection on this account, the presumption against him is conclusive that the copies were duly served. If, by the record, it appeared that he had objected on that ground in the trial court, and it had there appeared that the jury-list had not been served, it would be essential to the validity of the judgment that it appear of record that the defendant's consent to be put upon trial was deliberately expressed in open court. In this respect no error is apparent. Intendment will be made against the party excepting, and in favor of the judgment. Powell, App. Jur. p. 129, § 21.

The second assignment of error is that the facts set forth in said cause do not constitute any crime committed against the laws of the state. The point made is that the evidence did not justify conviction; that the jury should have resolved the doubt in the case in favor of the defendant, and rendered a verdict of acquittal. That question cannot be considered on a writ of error. If the premises are well founded, it constituted good ground for an application for a new trial. There was sufficient evidence to go to the jury, and it was submitted with proper instructions by the court.

The third assignment of error is that the court allowed the call of the jury to proceed before all the jurors were present, and without a full list thereof. The record shows that, after the challenge to the array was overruled, the court ordered the list of jurors to be called. Upon the call six jurors did not answer. The counsel of defendant objected to proceeding until all the jury were present. The objection was overruled, and the names of the 48 jurors summoned were put in the box, from which the jury for this cause was drawn. If it is necessary that every juror of the 48 summoned for service at the term should be present in court when a case is called for trial, it would be quite impossible to conduct the prosecution of criminal trials successfully. Our statute requires only that the list of 48 jurors be served. It does not require that all the jurors shall be present when the case is moved. The language of the section with respect to a tales clearly shows that the presence of all is not essential. It provides that if, by reason of challenges or the default of jurors, or otherwise, a sufficient number cannot be had of the original panel to try the issue, a tales may be awarded. The power of the court to excuse a juror from the general panel for cause is recognized in this as well as in other states. Smith v. Clayton, 29 N. J. Law, 358; Ware v. Ware, 8 Me. 42; State v. Ward, 39 Vt.' 230.

As the ninth ground for reversal the defendant assigns for error that the court below refused to direct that the state should challenge first. On. the trial of a capital case, reported in 120 Mass. 185, (Com. v. Piper,) it was held that it is within the discretion of the court, in the absence of statutory regulation or a general rule of court, to determine the order in which the right to challenge shall be exercised, by the state or by the defendant, and no exception lies to the exercise of that discretion. The same rule has been adopted in other states, and I deem it to be well founded in reason. State v. Pike, 49 N. H. 406; Manufacturing Co. v. Canney, 54 N. H. 295; Schufflin v. State, 20 Ohio St. 233.

The next alleged error is that the court ordered the sheriff to summon 42 qualified jurors to serve as talesmen in said cause on the following Monday. It has long been settled, both in England and in this country, that it is not necessary to select talesmen from persons accidentally present in court. They may be persons whose presence the sheriff has taken previous means to obtain. 5 Bac. Abr. "Juries," D. 337; Bex v. Dolby, 2 Barn. & C. 104. State v. Allen, 47 Conn. 121, was a capital case. The court, before the trial commenced, ordered the sheriff to have in attendance men from whom talesmen could be chosen for the trial of that cause. The court of review held that the sheriff might take talesmen from those in attendance, or he might go outside according to his discretion, and that there was no error in the court suggesting to the sheriff to have proper men in attendance. In U. S. v. Loughery, 13 Blatchf. 267, Judge Benedict ruled that the marshal may select talesmen from those not present in or about the court-house; and that, when they were returned by the officer, they became by-standers within the meaning of the statute. Bird v. State, 14 Ga. 43, was also a capital case, in which the trial court directed the sheriff to send out into the county, and have in attendance a large number of citizens to act as talesmen if necessary. The appellate court said it was not error; but, on the contrary, a commendable practice calculated to secure a fair jury and prevent delay. It is within the general power which every court has, to arrange the order of business, and provide for the probable necessities which may arise in the conduct of a trial. This construction gives full effect to the language of our statute, which directs the sheriff to summon the tales from "the by-standers or others." There was no error in this direction to the sheriff.

Nor was there error in ordering the tales, when three of the original panel had not appeared and answered to...