State v. Bolitho

• Decision Date: 26 January 1927
• Docket Number: No. 23.,23.
• Citation: 136 A. 164
• Parties: STATE v. BOLITHO.
• Court: New Jersey Supreme Court

136 A. 164

STATE

v. BOLITHO.

No. 23.

Supreme Court of New Jersey.

Jan. 26, 1927.

[COPYRIGHT MATERIAL OMITTED]

Assignments of error to court's charge, not pointing out specific error therein, present nothing for review.

Error to Court of Oyer and Terminer, Morris County.

James H. Bolitho was convicted of malfeasance in his office of Prosecutor of the Pleas for the County of Morris, and he brings error. Affirmed.

See, also, 129 A. 926.

Argued January term, 1926, before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.

Richard J. O'Connor, of Dover, for plaintiff in error.

Wilfred H. Jayne, Jr., of Lakewood, for the State.

KALISCH, J. The plaintiff in error was convicted in the Morris county court of oyer and terminer on an indictment charging him with malfeasance in his office of prosecutor of the pleas for the county of Morris. The indictment contains eleven counts. These counts differ from each other in the nature of the malfeasance alleged to have been committed by the accused, and in that they charge separate and distinct acts of malfeasance to have been committed by him on different days of the years 1923 and 1924. The jury found him guilty on the first, fifth, sixth, seventh and tenth counts and not guilty on the eighth and eleventh counts. The second, third, fourth, and ninth counts were eliminated by the court from consideration by the Jury. On each of the counts under which the plaintiff in error was convicted, it was adjudged that he be confined in the state prison, at hard labor, for a maximum term of three years and minimum term of two years, and that the sentences should run concurrently.

The case is brought here for review on a strict writ of error and bills of exceptions and also by virtue of the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). Under the former there are 111 assignments of errors for a reversal of the judgment and under the latter there are 96 specifications of causes for reversal set forth to the same end. Many of the specifications of causes are repetitions of the assignments of errors. The assignments and specifications have been grouped and argued together, in an elaborate brief of 331 pages, submitted by counsel of plaintiff in error, and these will now be considered in the order in which they are presented.

The first point in the brief argued and relied on by counsel of plaintiff in error for a reversal of the judgment invokes consideration of assignments of errors, 1, 2, 12, 13, 14, 47, 48, 49, and 50, and specifications of causes, 1, 2, 63, 64, 65, and 66. These raise the question as to the legal propriety of the judicial action of the trial judge in denying a challenge on behalf of the plaintiff in error upon the ground that the court was disqualified, in law, to hear and determine the issues involved under the indictment.

The challenge is in writing. It states, in substance, that it is made because the interest of the Presiding Justice, Charles W. Parker, "as shown by the following enumerated acts, is such as to indicate a state of mind and an opinion contrary to the impartial administration of justice towards this defendant, to wit:

"(1). Without authority in law, he ordered an investigation upon a petition signed by a less number of taxpayers and freeholders of the county of Morris than required by law, said petition not setting up any facts constituting reason for such investigation, and containing merely a conclusion, namely that there were 'deplorable conditions' in the county of Morris."

"(2). That Justice Parker, without authority in law, appointed Wilfred Jayne, Jr., to prosecute and conduct the investigation without authority in law, etc.

"(3). That, notwithstanding the law of May 29, 1913 (P. L. p. 828), known as the Chancellor-Sheriff Jury Act, Justice Parker ordered and directed that the sheriff of the county of Morris be removed and thereby William C. Sweeny, the other jury commissioner was prevented from acting as such and that the said justice appointed two elisors, namely, Victor A. Weiss and Joshua R. Salmon, to select and impanel an elisor grand jury, etc.; that the said Salmon is licensed to practice law in the state of New Jersey, and that, under the Chancellor-Sheriff Jury Act of 1913, he was not eligible to be appointed a jury commissioner; that the said justice was interested in and took part in the selection of the elisor grand jury, in that he furnished to the elisor Joshua R. Salmon three different lists of names of grand juries previously selected at previous times in the court of oyer and terminer; that the list supplied to the elisor was not a list from which a grand jury could be legally drawn under the Chancellor-Sheriff Jury Act; that the said elisors added 20 or more different persons to the list given by them by the justice, and chose from those added names in making up the grand jury; that Nathaniel C. Toms, clerk of the grand jury and under civil service, at the request of Justice Parker, resigned, and one J. Donald Masterton, a nonresident of the county, was appointed by the justice as temporary clerk though he was not selected from the civil service list nor an employee, of the office of the prosecutor of the pleas of Morris county; that the said justice ordered and permitted the said Masterton to take the testimony of witnesses appearing before the elisor grand jury, etc.; that the said justice knew that there were only 22 persons sworn in as grand jurors, whereas the law requires that a grand jury shall consist of 23 jurors."

To this challenge there was a demurrer filed on behalf of the state, the legal effect of this pleading being an admission of such facts as are properly stated as a ground of challenge, but a denial of their sufficiency, in law, to disqualify the trial judge to hear and determine the issues involved in the case.

The avowed basis of the challenge, plainly stated therein, is that the interest of the trial judge, as shown by his acts enumerated in the challenge, is such as to indicate a state of mind and an opinion contrary to the impartial administration of justice towards the accused.

Proceeding upon the theory that the acts of the trial judge, complained of in the challenge, are accurately stated, it is quite obvious that they fall far short from showing that he had any personal or private interest apart from a duty which he, as a judicial officer, owed to the general public, namely, to protect the people of Morris county against corruption and misconduct of its public officers in the administration of the county's business; and, in order to achieve the end in view, he ordered, under the statute, an investigation, so that offenders betraying the public trust may be unveiled and brought to condign punishment.

The regularity of the procedure which invoked the investigation is not properly subject to a collateral attack, and moreover was, as aptly said by the trial judge, wholly irrelevant to the subject-matter of the challenge. The other matters spread out in the challenge do not indicate any such personal and private interest in the cause as would legally disqualify the trial judge from hearing and deciding the issues involved under the indictment.

The proper function of a challenge to the competency of a judge to sit in a cause on the ground of interest and bias has been, apparently, misconceived by the challenger, for, in considering the import of the other matters set forth in the challenge, we find that they comprise a series of judicial acts of the trial judge, which acts, if unauthorized, may properly support a challenge to the array of grand jurors selected and summoned by elisors, or, if an unauthorized person was permitted to be present in the grand jury room during the deliberation of the grand jury when the indictment against the accused was found, such a circumstance can be assigned as error; yet in no proper sense does either of these acts furnish a valid basis to a challenge of a trial judge on the ground of interest and bias.

We may safely assume that every law-abiding citizen is naturally at war with violators of the law and hence is more or less interested in the suppression of crime, which interest springs, not only from a sense of self-protection, but also from a duty to protect the community as well, against unlawful acts of its members, and therefore it is quite obvious that, in order to entertain the notion stressed in the brief of counsel of plaintiff in error, we would be driven to the ludicrous declaration that such an interest, as above indicated, disqualifies a judge or juror from sitting in judgment, impartially, between the state and the accused. Such a course would deal a disastrous blow to our judicial system.

In State v. Spencer, 21 N. J. Law, 196, Hornblower, Chief Justice, at page 199, stated a sound legal rule to be applied, when he said:

"A declaration of opinion to disqualify a juror, therefore, must be such a one as implies malice or ill will against the prisoner, thereby showing that the person challenged does not stand indifferent between the state and him. This is the uniform language of the books and cases which are of authority under our constitution, as well as of the English courts up to the present time."

This legal rule had become firmly imbedded in the law of this state. The salutoriness of the rule is luminously dealt with by Green, Chief Justice, in State v. Fox, 25 N. J. Law, commencing at page 596. We cannot conjure up any good reason why the legal principle enunciated is not equally applicable to a challenge to a judge upon the ground of interest and bias. We think it is. The challenge was properly overruled.

Under point II of the brief, it is next urged that the trial judge erred in overruling defendant's challenge to the array of petit jurors. The challenge was as follows:

"(1) That the said jury was purported to be drawn by Charles E. Estler, sheriff of the county of Morris, who heretofore, by the order...