State v. Brandenburg
| Decision Date | 09 January 1956 |
| Docket Number | No. 1113,1113 |
| Citation | 120 A.2d 59,38 N.J.Super. 561 |
| Parties | The STATE of New Jersey, Plaintiff, v. Grace W. BRANDENBURG and Anne Rosenstein, Defendants. (Criminal), New Jersey |
| Court | New Jersey County Court |
Frederick T. Law, Pros., Kearny, for the State (Leon Miroff, Asst. Pros., Bayonne, appearing).
George P. Moser, Union City, for defendant Grace W. Brandenburg.
Malcolm J. Robbins, Jersey City, for defendant Anne Rosenstein.
NIMMO, J.C.C.
This matter comes before the court on motion by both defendants to delete from the trial book of the Hudson County Court the following entry, indexed as indictment 1113 of the 1950 term of court at page 200:
'* * * after discharge of the jury it was brought to the Court's attention that the verdict was not unanimous, the Court ordered the jury returned to the jury box and testimony by Court Officers Charles Gallagher and Eugene Ertle. After discussion by the Court, attorneys for the defendants and Assistant Prosecutor, the Court ordered jury to retire for further deliberation; they again came into Court and being polled by Court Clerk all appeared and say they cannot agree upon their verdicts and
At the close of the trial and after summations and the charge of the court, the jury of ten women and two men retired to the jury room under escort of court officers at 3:30 p.m. on November 10, 1955. At 9:47 p.m. of the same day, having indicated to the court officers attending them of their desire to do so, they returned to court and occupied their places in the jury box. The clerk called the roll and inquired of them if they had agreed upon verdicts. The foreman responded for the jury as follows:
'The Clerk: Are your verdicts unanimous?
'Juror Number 1: Yes, sir.
'The Clerk: What are your verdicts?
'Juror Number 1: Your Honor, the verdict is not guilty.
'The Clerk: For both defendants?
'Juror Number 1: We only decided on one verdict and it's not guilty.
'Juror Number 1: Do you want two separate verdicts?
'The Court: Well, who is not guilty?
'Juror Number 1: Well, we only voted on one verdict for two defendants of not guilty.
'The Clerk: That is your verdict then; both defendants not guilty?
'Juror Number 1: That's right.
'The Clerk: You say you find a verdict of both defendants not guilty as charged, and so say you all?
It is what transpired after the foregoing verdict was given that is the subject of this motion. Upon the discharge of the jury as above recorded by the court reporter, the judge left the bench and went to his chambers across the rotunda of the court house, a distance of about 150 feet. Before he put on his coat a court officer came to him and informed him that some members of the jury, after they left the courtroom, complained that the foreman did not render the right verdict. The court officers had reassembled the jury in the jury room and the judge, returning to the courtroom questioned the officers.
It was in a passageway and corridor outside of the court that some of the jurors made known their displeasure with the verdict. Approximately ten minutes elapsed from the time of discharge and when the jury was reassembled in the jury box and the judge took the bench, as appears from the record of the court reporter. The court directed the jury to again retire and deliberate further and bring in a unanimous verdict, else it is no verdict. At 12:05 a.m., November 11, 1955, the jury returned to court and announced that they could not agree upon a verdict and were finally discharged.
When the foreman of the jury announced the not guilty verdict upon the jury's first return, the court observed no sign from the other members of the jury to indicate that they were not in agreement with the verdict as given by their foreman. They looked tired. They had been in attendance in the courtroom since 9:30 a.m. that day. Of course, defense attorneys did not ask to have them polled, the prosecutor did not either, and the court saw no indication for a poll, although all three could have asked that it be done.
The question presented is at what point does a jury cease to be a jury and relieved of their official character? There must in all things be a beginning and an end, an alpha and omega. We have cases that mark the point of the beginning of a criminal trial, so that once beyond that point there is no returning, the trial must go on else there would be the double jeopardy prohibited by the Constitution.
This court is of the opinion that the words 'the jury is discharged' do not in themselves terminate the case. There is authority in other jurisdictions on the point; however, a court should not be so impotent to act after those words are uttered as to do an injustice to the accused or the State. It should be noted that there is no indication from any source that the jury in the instant case was coerced or that they were intimidated. It was the thought of such a possibility that prompted the court to reassemble this jury.
In Porret v. City of New York, 252 N.Y. 208, 169 N.E. 280 (Ct.App.1929), Judge Cardozo writes:
The jury in question did leave the courtroom, they were beyond the sight and voice of the judge, and the court had adjourned until the following Monday, as Thursday midnight of November 10 was the eve of the Armistice holiday.
In Summers v. United States, 11 F.2d 583, 586 (4 Cir., 1926), we find that
'It is not so much what is said in passing as what is actually done and acted upon that determines the question of discharge.'
Had the jury in question, after they left the box, been in the courtroom and the judge was still on the bench, when some of them complained, we would not, in the opinion of this court, had any difficulty in determining that they were still a unit under the control of the court.
Once a jury has been discharged and they have gone out of the presence of the court, it would be a dangerous procedure to have them again deliberate upon the case. Here it is the defendants who object, as the verdict as given originally was not guilty. In a case where the verdict is guilty it could well happen that after the jury left the presence of the court a threat from a cohort of the defendant would make some of them complain that the foreman did not report a true verdict.
Jurors are supposed to be intelligent people and this jury was, judging from their appearance and the attention they gave...
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Com. v. Brown
...an opportunity for outside influence. People v. Rushin, 37 Mich.App. 391, 396--400, 194 N.W.2d 718 (1971). State v. Brandenburg, 38 N.J.Super. 561, 564--567, 120 A.2d 59 (1956); State v. Hamilton, 250 N.C. 85, 89, 108 S.E.2d 46 (1959); Commonwealth v. Johnson, 359 Pa. 287, 293--294, 59 A.2d......
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T.D.M. v. State
...was discharged by investigating whether the jury actually left the presence and control of the court. See, e.g., State v. Brandenburg, 38 N.J.Super. 561, 120 A.2d 59, 61 (Hudson County Ct.1956). In New Mexico, in a case where the jury was called back to the courtroom to correct a verdict on......
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...language directly stating that "the words 'the jury is discharged' do not in themselves terminate the case." State v. Brandenburg, 38 N.J.Super. 561, 120 A.2d 59, 61 (Hudson County Ct.1956). As will become apparent from our later discussion of additional cases, other jurisdictions are in ac......
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T.D.M. V. State Of Ala. Appeal From Wilcox Circuit Court (CC-06-12)
...was discharged by investigating whether the jury actually left the presence and control of the court. See, e.g., State v. Brandenburg, 38 N.J. Super. 561, 120 A.2d 59, 61 (Hudson County Ct. 1956). In New Mexico, in a case where the jury was called back to the courtroom to correct a verdict ......