Peak v. State

• Decision Date: 27 February 1888
• Citation: 12 A. 701,50 N.J.L. 179
• Parties: PEAK v. STATE.
• Court: New Jersey Supreme Court

12 A. 701

50 N.J.L. 179

PEAK

v. STATE.

Supreme Court of New Jersey.

February 27, 1888.

(Syllabus by the Court.)

Error to court of oyer and terminer, Burlington county; PARKER, Justice, presiding.

Mr. Gaskill, Mr. Robbins, and Frank Fort, for plaintiff in error. Charles E. Hendrickson, for defendant in error.

BEASLEY, C. J. Barclay W. Peak was convicted before the oyer and terminer of the county of Burlington of the willful murder of Mary Catharine Anderson. The case is before this court on error, so that the only question to which we are at present called upon to respond, is whether the proceedings ensuing in a conviction are in conformity with the laws of the state. It appears from the bills of exception that the judicial conduct of the trial was in many respects put in question, but it will be sufficient to discuss and decide those objections that were principally relied upon by the counsel of the defendant in their arguments before us.

The objection first urged was that the court below erred in overruling the challenge to the array of the panel of jurors, which was interposed in behalf of the defendant. The record shows that 60 persons were duly selected in Burlington county to constitute the general panel of juries for the term at which this case was tried; and this challenge stated, as its ground, "that the list of the names of the persons selected and drawn by the sheriff of the said county of Burlington to serve as jurymen at the said April term of said court, and certified by the court of common pleas, and duly filed in the clerk's office, was not a complete list of the names of the persons so drawn and selected, but, on the contrary, contained the names of only twelve persons." But we do not find this objection to be sustained by the facts before us. Upon inspection, we think that the entire 60 names were upon the list that was certified and filed. It would be useless to describe the paper in question; it is sufficient to say that we do not agree with the argument that attempted to separate this certified list into detached parts, but that we regard it as a unit, and in this view it is plainly unobjectionable.

The second objection to the return of the jury was because it appeared that the sheriff had selected from the general list of 60 names, according to his judgment, the trial list of 48 names, which had been served upon the prisoner. This exception is not well founded. It is one of the functions of the sheriff to prepare the list of 48 names in the way he did in this case. The course of proceeding is prescribed in section 72 of the criminal procedure act, in these words, viz.: "In all cases where any prisoner or defendant, in or upon any indictment, is or may be by law entitled to peremptory challenges, and to have a copy of the panel or a list of the jury delivered to him previous to his trial, it shall be the duty of the sheriff, or other proper officer, to select such panel or list of forty-eight jurors from the general panel or list of jurors at the term at which such prisoner or defendant is to be tried." The contention of the counsel of the defendant was that this provision had been modified by the act of 1881 (Pamph. L. 49) so as to require the names of all the jurors on the general panel to be put into the box, and 48 names to be drawn therefrom, and the latter names so drawn to constitute the trial panel, a copy of which was to be served on the prisoner. But this is a misconstruction of the act referred to, for very plainly it does not have the effect ascribed to it. Its words are "that, in all cases requiring a list of the jury to be served on the defendant, the names of the jurors so served shall be placed in and drawn from the jury-box in the ordinary way." Thus it appears that it is not the names on the general panel, but the names on the list to be served on the prisoner, which are to be put in the box. The statutory purpose is plain. Before its passage the 48 names selected by the sheriff in putting a jury in the box were called in the order in which they stood upon this list; the consequence being that the officer had. in a measure, the selection of the persons who would try the prisoner, and which was a power liable to abuse; and hence the requirements in the later act to put these 48 names in the box, and that they should be drawn therefrom as in ordinary cases. Since the passage of this act of 1881, this has been its interpretation and uniform enforcement in practice. The objection has not the least force.

But there is a second exception arising from another matter comprised in this same challenge, which appears to the court to be of a very different character. It is now insisted, before this court, that at the trial the panel containing the 48 names was objected to, not only on the ground just disposed of, but for the further reason that such trial-list had been selected, not by the sheriff, as the act requires, but by such officer with the co-operation of the prosecutor of the pleas of the county. The question thus raised is manifestly a vital one, and therefore, in order that it may be entirely comprehended, I will set out the pertinent bill of exception relative to the subject in full. These are its words, viz.:

"Mr. Gaskill. We take exception to the method by which the forty-eight men were selected. We assert, and offer to show, that they were selected by the sheriff not in accordance with the provision of the statute, which requires that the names shall be put in a box, and taken out in the same way that jurors are drawn to sit upon the panel. In this case they were merely penned off or marked off by the officer, and were not placed in the box, and taken from there. I refer the court to Pamphlet Laws of 1881, page 49. In cases requiring a list of jurors to be served on defendant, the names of the jurors so served shall be placed in and drawn from the jury-box in the ordinary way. The panel served upon the prisoner was not properly selected by the sheriff. The names of all the panel of jurors are required by law to be put in the box, and the forty-eight names to be drawn and served upon the prisoner selected from the box; but in this case it had not been done in that way, but they had been selected by the sheriff and prosecutor of the pleas from the whole number of names on the panel, and not in compliance with the law.

"But the court, after hearing argument thereon, refused to sustain the said exception, or set aside said list, but ordered the jurors to be drawn from the list of forty-eight names aforesaid; to which decision and ruling of the said court the counsel for the prisoner excepted, and prayed a bill of exceptions, and that the same be sealed, and it is allowed and sealed accordingly.

"JOEL PARKER, P. J. [L. S.]

"JAS. O. GLASGOW. [L. S.]

"BENJ. P. WILLS. [L. S.]"

It will from this recital be perceived that the plain interrogatory put to this court is whether, in a criminal case, if the defendant offers to show that the 48 jurors constituting the panel from which are to be taken the jurors to sit in his case have not been drawn from the box, but "have been selected by the sheriff and prosecutor of the pleas from the whole number of names on the panel," and such offer be overruled, such judicial action be or be not legal." This is not a technical question, and consequently should not be so treated by this court. It was suggested by the counsel of the state, in his argument before us, that this exception was not relied on before the trial court,—that it was the other objection, and which has already been overruled, that was pressed; but of this we can know nothing. We have a certificate before us, under the hands and seals of the trial judges, that the exception was thus interposed, and we cannot be judicially informed as to the stress laid upon it in the argument of counsel in support of the challenge; nor, if we had such knowledge, could it in any measure affect the result, for, if the point be well taken, the feebleness of its presentation, or of the argument in its support, can detract nothing from its legal force. My first thought was that the objection had not been presented in proper form, inasmuch as it is a challenge to the array, and was not in writing; but reflection has satisfied me that the suggestion has not the force that it was supposed to have. In the first place, a mere technicality of this kind, whose tendency is to prevent an inquiry into the fairness of the proceedings in the selection of a jury to try a person on a charge of a capital offense, should not be allowed to prevail, unless from the absolute constraint of law; and in the second place, although Mr. Chitty (1 Crim. Law, 544) says that a challenge to the array must be in writing, I have failed to find any authority sustaining the assertion. This author himself makes no reference to the books in maintenance of his text; and, upon looking into the reports, I find cases that are adverse to the proposition thus broadly stated. Thus, in 3 Burn, J. P. 522, it is said: "And every challenge must be propounded in such a way as that it may be put at the time upon the nisi prius record, so that the adverse party may either demur, or counterplead, or deny the matter of challenge." This seems to be all that is requisite, and it is obvious that this requisition has been complied with in the present instance. In the case of Hoare v. Broon, Cro. Eliz.369, there occurs a challenge to the array, ore tenus, and which was acted upon by the court in a way that indicates quite clearly that the procedure was nothing unusual. See, likewise, Bac. Abr. tit. "Jury." Besides this, even if it appeared to be the practice at common law to put in these challenges in writing, even then I should be unwilling to apply the rule to this case in its present position; for this challenge was in point of fact put in writing by the stenographer in the presence of the court, and was considered and passed upon...