State v. Blisak

• Court: New Jersey County Court
• Writing for the Court: Smith, Arthur B., C. P. J.
• Citation: State v. Blisak, 58 A.2d 711, 26 N.J.Misc. 197 (N.J. Cty. Ct. 1948)
• Decision Date: 14 April 1948
• Parties: STATE OF NEW JERSEY v. MICHAEL BLISAK, DEFENDANT

58 A.2d 711

STATE

v.BLISAK.

Court of Quarter Sessions of New Jersey, Somerset County.

April 14, 1948.

Michael Blisak was charged with an assault with an offensive weapon with intent to rob. The jury found the defendant guilty. On motion by defendant to arrest judgment.

Motion denied.

Samuel Chiaravalli, of Bound Brook (J. Berkeley Leahy, of Bound Brook, of counsel), for the motion.

T. Girard Wharton, Prosecutor of the Pleas, and Leon Gerofsky, Asst. Prosecutor of the Pleas, of Sommerville, for the State.

ARTHUR B. SMITH, Common Pleas Judge.

The trial of the indictment against the above named defendant took place on February 10, 11 and 12, 1948. The indictment charged him with an assault with an offensive weapon with intent to rob one Bernard Fricks (Rev.Stat. 2:110-2 and 3, N.J.S.A.).

After the Court had instructed the jury, the Court, pursuant to the provisions of Rev.Stat. 2:190-14, N.J.S.A., directed the verdict of the jury to be taken by the clerk in the absence of the Judge and ordered that the Court remain open for that purpose. Subsequently, in the absence of the Judge, the jury returned into Court and rendered their verdict to the clerk. The jury found the defendant guilty.

On February 17, 1948 the defendant moved to arrest judgment, the motion being ‘based on what transpired at the trial, or rather, at the expiration of the trial’, contending that associate counsel, J. Berkeley Leahy, had requested the clerk ‘to poll the jury when the verdict was rendered’ and that the clerk had refused this request asserting that he believed he did not possess the authority to do so and that only the Court itself could poll the jury. The defendant contends that this refusal on the part of the clerk was prejudicial error and such a violation of the rights of the defendant as to require the Court, on the defendant's motion, to arrest the judgment.

The Clerk's belief that he did not possess the authority to poll a jury is not difficult of explanation and understanding. For some reason unknown and which does not appear to be very substantial, there is a difference between civil cases and criminal cases with respect to the right of the clerk to poll a jury. In a civil case ‘the court may direct that the jury's verdict be taken by the clerk, in open court in the absence of the judge, and may order that the court remain open for that purpose’. R.S. 2:27-236, N.J.S.A. This section of the statutes is silent respecting the polling of the jury by the clerk. However, in a criminal case the statute not only provides that the court ‘may direct the verdict of the jury to be taken by the clerk or his representative in open court, in the absence of the judge or judges of the court, and the judge may order that the court remain open for that purpose’, but further provides that ‘On the request of the defendant or his counsel, or the state, the jury may be polled by the clerk or his said representative, and the verdict taken as though in open court before the judge or judges'. R.S. 2:190-14, N.J.S.A. This distinction between civil and criminal cases with respect to the right of the clerk to poll the jury was recognized by our Court of Errors and Appeals in Francillo v. Latour, 116 N.J.L. 423, 184 A. 820, wherein it was held that the clerk has no authority to poll a jury in a civil case. It is quite apparent that under the circumstances prescribed in R.S. 2:190-14, N.J.S.A., the clerk may in any criminal case, except in a capital case, not only take the verdict, but, upon a proper request therefor, may also poll the jury.

An examination of the pertinent authorities indicates that there is some division of thought by the courts as to whether the polling of the jury is the absolute right of a litigant, 16 C.J., title Criminal Law, page 1098, paragraph 2576; 23 C.J.S., Criminal Law, § 1392a, page 1070. However, it is not deemed necessary to decide that question in this case. Whether a litigant in any case is entitled to have a jury polled seems to be dependent upon the making of a proper request therefor at a proper time in the proceedings. ‘The jury may be polled after the verdict is given and before it is filed; and a motion or request to poll shculd be made as soon as the verdict is announced; it comes too late if made after the verdict is announced and recorded, * * * It has been held that, where the judge erroneously permits the jury to be polled, although such permission should have been refused because it was not asked within the proper time, and one or more of the jurors dissents from the verdict, the verdict is not thereby vitiated’. 16 C.J., title Criminal Law, page 1098, Paragraph 2577. See also 64 C.J., title Trial, page 1060, paragraph 863; 23 C.J.S., Criminal Law, § 1392b, page 1071. ‘Failure to make a demand for a poll of the jury before the verdict has been recorded may constitute a waiver of the right.’ 14 Am.Jur., title Criminal Law, page 916, paragraph 213. ‘However, a request to have the jury polled before the verdict is rendered is premature and properly denied’. 53 Am.Jur., title Trial, page 704, paragraph 1017; 27 R.C.L., page 839, paragraph 8.

In the case of Commonwealth v. Schmous, 162 Pa. 326, 29 A. 644, 645, it was held that a request to poll the jury comes too late after a verdict has been announced, recorded and affirmatively responded to by the entire jury and that where pursuant to a request thereafter received the jury is erroneously polled, the separate answers given by the jurors, if not in harmony with such verdict, may be treated as surplusage. In the last cited case the defendant was convicted of murder in the first degree. His motion in arrest of judgment was overruled and an appeal was taken. Mr. Chief Justice Sterrett, writing for the Supreme Court of Pennsylvania, said in part: ‘What actually occurred at the time is concisely and chronologically stated by the learned trial judge in his opinion overruling the motion in arrest of judgment, thus: ‘The jury having been brought into court, the prisoner, being in the dock, was directed to stand up, and the jury was then directed to look upon the prisoner. The clerk, addressing the jury, said: ‘Gentlemen of the jury, have you agreed upon your verdict?’ To which each answered, ‘We have.’ ‘Who shall answer for you?’ To which each answered, ‘Our foreman.’ The clerk then said: ‘In this issue joined between the commonwealth and George Schmous, the prisoner at the bar, how say you? Is he guilty of the felony wherewith he stands charged, or not guilty?’ To which the foreman answered, ‘We find him guilty of murder in the first degree.’ The clerk then handed the indictment to the court, made the entry on minutes, and then said to the jury: ‘Harken to your verdict as the court has recorded it. In this issue joined between the commonwealth and George Schmous, the prisoner at the bar, you say you find him guilty of murder of the first degree, and so you say all.’ To which each answered, ‘We do.’ After this was done, counsel for defendant asked a poll of the jury, which being granted, the clerk again put to each juror, separately, the question: ‘In this issue joined between the commonwealth and George Schmous, the prisoner at the bar, how say you? Is he guilty of the felony wherewith he stands charged, or not guilty?’ To which each answered ‘Guilty.’ No objection was made to the answer by any one. Counsel for defendant claims that the verdict of murder in the first degree, as so rendered, and recorded, was nullified by the failure of each juror to specify the degree in his answer upon the polling.' According to the well-settled practice in the oyer and terminer, the request to poll the jury came too late, and should have been denied. The verdict, in due form, had already been not only announced, but recorded, and affirmatively responded to by the entire jury. The separate answers, given after all that was done, if not in harmony with the previously recorded verdict, may be treated as mere surplusage * * *. There is nothing in the alleged error that would warrant a reversal of the judgment'.

The defendant in arguing the motion to arrest judgment placed substantial reliance upon the decision of the Superior Court of Pennsylvania in the case of Commonwealth v. Lemley, 158 Pa.Super 125, 44 A.2d 317, as establishing the defendant's right to have the jury polled. However, as previously indicated, it is not deemed essential to the defendant's motion to decide whether he has an absolute right to the polling of the jury. In the case relied upon by the defendant, while the court indicated that it was a defendant's right to have a jury polled, the court plainly recognized that the exercise of the right was dependent upon a proper request being made before the recording of the jury's verdict. In that case it appeared that a request to poll the jury had been made immediately after the first announcement of the jury's verdict and before the recording thereof.

In the case of Rottmund v. Pennsylvania R. Co., 225 Pa. 410, 74 A. 341, it was held that a motion to poll the jury comes too late after the verdict has been announced, affirmed by the jury collectively and recorded in the minutes. In Eastley v. Glenn, 313 Pa. 130, 169 A. 433, it was held that after a verdict is recorded, the jury may not vary from it. See also Scott v. Scott, 110 Pa. 387, 390, 2 A. 531, 532.

In Hommer v. State, 85 Md. 562, 37 A. 26, it was held that the right of a defendant on trial for murder to a poll of the jury is waived if no demand therefor is made before the verdict is recorded. In that case the defendant had been convicted of murder and the question under consideration related to the defendant's right to a poll of the jury. The court said in part: ...