State v. Calabrese

• Decision Date: 20 October 1930
• Docket Number: No. 62.,62.
• Citation: 151 A. 781
• Parties: STATE v. CALABRESE et al.
• Court: New Jersey Supreme Court

151 A. 781

STATE

v. CALABRESE et al.

No. 62.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Error to Court of Oyer and Terminer, Essex County.

Joseph Calabrese and another were convicted of murder in first degree, and they bring error.

Affirmed.

John W. McGeehan, Jr., and Charles Becker, both of Newark, for plaintiffs in error.

Joseph L. Smith, Pros, of the Pleas, of Newark, for the State.

LLOYD, J.

The plaintiffs in error were convicted of murder in the first degree without recommendation of life imprisonment and sentenced to death, and the case is before us for review, both on bills of exception and on specification of causes for reversal on the entire record under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863, § 136).

The first reason urged for reversal is that the court erred in overruling the challenge to the array of the panel of jurors from which the trial jurors were drawn. The challenge was based on the fact that all of the names of the general panel of jurors were not in the box at the time the drawing took place. What occurred was this: The forty-eight names comprising the special panel of jurors were drawn from the general panel. When this special panel was exhausted, the sheriff proceeded to draw from another box containing only a portion of the remaining names of the general panel; the jurors for the term having been divided into two separate panels in accordance with chapter 296 of the Laws of 1927, and the names being drawn from one of the boxes containing the names as thus divided. When this box was exhausted, the drawing continued from another box containing the names of the remainder of the general panel, and at this point counsel for the defendants interposed the challenge to the array. Assuming, as contended by the plaintiff's in error, that the act of 1927 applies only to the trial of civil cases, we deem it quite clear that the defendants were in no wise "prejudiced in maintaining their defense upon the merits." All of the names were those of potential jurors and presumably qualified to serve. That some of those thus qualified were not in the box at the time could by no possibility prejudice the defendants. There was afforded every opportunity to secure impartial triers, and no reason is suggested to indicate that these were not obtained. That the jurors chosen were satisfactory to the defendants is apparent from the fact that the peremptory challenges available to them were never exhausted. Harmless irregularities, even errors, cannot be availed of to defeat the results of a fair trial. Such is the declaration of legislative authority in the 136th section, supra, and this court will be appealed to in vain to defeat the ends of justice by such means. As was said by Justice Van Syckel nearly half a century ago in Patterson v. State, 48 N. J. Law, 383, 4 A. 449, 450: "The reason for resorting to mere technicality to enable the criminal to evade the sanctions of the law" (viz: extreme penalties in disproportion to the offenses) "no longer exists, and the practice to which that reason led should therefore cease. Men who make their lives a scourge to society must answer its violated laws, and can justly demand in a judicial tribunal nothing except a fair trial according to the laws of the land, in which no substantial right is denied them."

Our conclusion is that the defendants at the trial were not prejudiced by the manner of selecting the jury.

It is next argued as a reason for reversal that the court erroneously permitted the prosecutor, over objection, to question jurors on their voir dire without any challenge being first interposed. Counsel for the plaintiffs in error concede that they themselves examined jurors without challenge, but contend that this was not a waiver or acquiescence in the practice. From the record it appears that a juror was called and the clerk was about to swear him on his voir dire when counsel for the defendants objected, the prosecutor having previously requested that all of the jurors be so sworn in a body rather than individually. The objection was overruled and tbe juror sworn. It will thus be seen that no challenge to the favor had been interposed and to this extent the proceeding was irregular. This much was decided in the case of Clifford v. State, 61 N. J. Law, 217, 39 A. 721, and reiterated by this court as recently as State v. Palmieri, 93 N. J. Law, 195, 107 A. 407. The evils that would attend the course pursued in the present case are patent and serious. They were pointed out in the Clifford Case and need not be here recounted. Whatever the practice in other jurisdictions may be, the requirement that a challenge be interposed before a juror may be sworn as to his impartiality between the parties is too well established to be disturbed by the practice in other states or by a custom which it is said has grown up in our own state.

It does not follow,...