State v. Barker

• Decision Date: 09 June 1902
• Parties: STATE v. BARKER.
• Court: New Jersey Supreme Court

52 A. 284

68 N.J.L. 19

STATE

v. BARKER.

Supreme Court of New Jersey.

June 9, 1902.

Error to court of quarter sessions, Hudson county.

Thomas A. Barker was convicted of assault with intent to kill, and brings error. Affirmed.

Argued February term, 1902, before GUMMERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON, JJ.

Samuel Kalisch and Marshall Van Winkle, for plaintiff in error.

James Erwin, Prosecutor of the Pleas, for the State.

GUMMERE, C. J. The plaintiff in error, who was convicted of an assault upon one John Kellar with intent to kill, seeks to have that conviction reversed for errors alleged to have been committed at the trial.

The first assignment of error is directed at the action of the court below in sustaining a demurrer to a challenge of the plaintiff in error to the array of jurors. The challenge, which was in writing, set out many grounds for quashing the array; but three of them, however, were considered by counsel of sufficient importance to be presented to this court, and, under the settled practice, only these will be considered.

The first of these objections was that, on the list of names handed down by the judge from which the jury was to be struck, "are and were the names of persons who are and were disqualified, at the time of their selection by the judge, to serve as jurors herein." Whether disqualification of one or more jurors is a good ground of challenge to the array may, at least, be doubted. In Thomp. & M. Jur. p. 115, § 139, it is stated that the fact that persons who are disqualified from jury service are included in the panel is not a ground for challenge to the array. The same statement appears in Rap. Cr. Proc. § 183. In Smith v. Smith, 52 N. J. Law, 207, 19 Atl. 255, it was held by the court of errors and appeals to be no ground for a challenge to the array that one of the jurymen, whose name appeared upon the list of names handed down by the judge from which the jury was to be struck, was dead. In disposing of the matter the court say: "There was no objection to the jury until the trial was called. Had the attention of the court been directed to this matter before that time, another name might have been supplied. There is no allegation that there was any design or collusion for the purpose of affecting the trial, or that the defendants were prejudiced, and the statute makes ample provision for the required number of jurymen, by an award of tales to call others until the panel is full for the trial." The same conditions which are referred to in the cited case existed in that now under consideration, and would seem to Justify the overruling of the challenge so far as it was rested upon the presence upon the panel of one or more persons who were disqualified to serve as jurors. Assuming, however, that the presence upon the panel of persons who are disqualified is good ground of challenge to the array, the challenger must set forth, in his challenge, the facts from which the disqualification arose. Whether or not a man is disqualified to serve as a juror is a conclusion of law to be drawn by the court from the facts submitted to it. In Mann v. Glover, 14 N. J. Law, 203, Hornblower, C. J., says: "A challenge must be in such terms that the court can determine whether the facts, if true, are sufficient to support such challenge. The defendant says he challenges the juror because 'he does not stand Indifferent between the parties.' But these words do not constitute a challenge; they express only the reason for making the challenge, or the judgment or conclusion of law consequent upon finding the ground of challenge to be true. He must go further, and state why the juror does not stand indifferent. He must state some facts or circumstances which, if true, will show that the Juror is positively and legally disqualified." The point in that case came up, as it does here, upon the overruling of a challenge without hearing testimony in support of it. On the authority of the case cited, the sustaining of the demurrer, so far as this ground of challenge is concerned, was proper. The allegation that some of the men whose names were upon the list were not qualified to serve as jurors being a conclusion of law, and not a statement of fact, its truth is not admitted by the demurrer. A demurrer only admits the facts set out in a pleading, and not then unless they are sufficiently pleaded.

The second ground of challenge relied on by the plaintiff in error is that "one William F. Toffey, whose name is among the forty-eight names included in the venire, is exempted from jury duty by reason of service in the National Guard." Section 140 of the Revision of the National Guard Act (P. L. 1900, p. 458) declares that "every member of the National Guard shall be exempt from jury duty." This statutory provision does not create a disqualification. It confers a personal privilege, by virtue of which a member of the National Guard, on his own motion, is entitled to be excused from jury service. That which exempts but does not disqualify affords no ground for challenge. Patterson v. State, 48 N. J. Law, 381, 4 Atl. 449; Smith v. Smith, supra.

The third ground of challenge argued before us is that the jury (which was a struck jury) was not properly selected for the following reason, viz.: "The jury herein had been drawn under the act of 1898 [section 76], and, being drawn thereunder, does not amount to a struck jury, that is, one of special talents," etc. Section 76 of the act of 1898 provides that, "when a rule for a struck jury shall be entered in any criminal case, the court granting such rule may select, from the persons qualified to serve as jurors in and for the county, ninety-six names, 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," etc. P. L. 1898, p. 895. The contention of the plaintiff in error is that a struck jury must be selected from among those persons, competent to serve as jurors, who are, in the opinion of the Judge striking the jury, best qualified, as to talents, knowledge, integrity, and independence, to try the case; and that the act of 1898, because it fails to provide for such a selection, is invalid. The reasoning of counsel is that, because almost from the time of the adoption of the constitution of 1776 down to the passage of the act of 1898, struck juries have been required, by statute, to be selected from among those persons who had the qualifications which have been specified, therefore the legislature infringed a right given by the constitution to persons under indictment, by providing for the selection of a struck jury from the whole body of the qualified jurors of the county. This is conspicuously a non sequitur. The constitution secures to a person under indictment a speedy and public trial by an impartial jury. It does not define the means by which such jury shall be obtained, nor does it contain any prescription with relation to the disqualifications of jurors, other than impartiality. These matters are left in the discretion of the legislature without restriction or limitation. Brown v. State, 62 N. J. Law, 666, 678, 42 Atl. 811. The fact that for a period of more than 100 years the legislature has considered it advisable that struck juries should be selected from among persons best qualified by particular talents, knowledge, etc., to try the cause, did not confer any right upon persons accused of crime to have this characteristic in the make-up of struck juries perpetually continued. The right of the legislature to make the change which appears in the act of 1898 has always existed, though not exercised for more than a century.

The second assignment of error argued by counsel deals with the refusal of the court below to permit the defendant to put in evidence certain conversations had by him with his wife and another person. It appears from the terms of the offer that, if the defendant had succeeded in his attempt to kill Kellar and had been indicted for murder, these conversations, under certain conditions, might have been competent evidence on the question of the degree of his guilt; and the contention of his counsel is that they were equally admissible although his attempt was unsuccessful. The offense charged in the indictment is a statutory one. Section 113 of the Revision of the Crimes Act, as amended...