State v. Carlino

• Decision Date: 18 November 1922
• Citation: 118 A. 784
• Parties: STATE v. CARLINO.
• Court: New Jersey Supreme Court

118 A. 784

STATE

v. CARLINO.

Supreme Court of New Jersey.

Nov. 18, 1922.

Appeal from Court of Oyer and Terminer, Sussex County.

Angelo Carllno was convicted of murder, and he appeals. Affirmed.

Argued June term 1922, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ.

Egbert Rosecrans, of Blalrstown, and W. A. Dolan, of Newton, for appellant.

Lewis Van Blarcom of Newton, Michael Dunn, of Paterson, Sylvester C. Smith, Jr., of Phillipsburg, and Theodore E. Dennis, of Hamburg, for the State.

SWAYZE, J. The defendant was one of a party who assembled in Pennsylvania and went to what is called the Cat Swamp, between Andover and Stanhope, in Sussex county, under the lead of one Turko. They waylaid a truck laden with silk and rolls used in silk manufacturing. The chauffeur of the truck and his companion were taken by Carlino and three associates, tied with ropes as prisoners, and abandoned a few hours later. While they were there, one Coster came down the road on a motorcycle on his way to work. Turko stopped him and shot him dead, that he might not spread news of the robbery. Carlino is said not to have been within sight or hearing of the spot where Coster was killed. Turko was indicted for and convicted of murder. Carlino was also convicted of murder, and his conviction is now before us for review.

When called to plead to the indictment, Carlino pleaded not guilty. When the trial was moved, he was allowed, on his own application, to withdraw the plea of not guilty, and then offered to interpose a plea in bar in which he averred that he had been heretofore lawfully acquitted of the same offense charged in the indictment, and stands acquitted of the robbery charged in another indictment, out of which robbery the indictment and charge of murder is said to spring. Inasmuch as neither indictment of Carlino had been tried, this plea is most extraordinary. Counsel contend that, because there were two indictments, one for robbery and one for murder, and the state chose to try the indictment for murder first, that election was equivalent to acquittal on the other indictment, but he does not attempt to explain how a mere election to try one indictment before the other can amount to an acquittal on the indictment not tried. His case lacks the essential element of a verdict, let alone a judgment. The defendant makes a bold attempt to substitute the supposed opinion of the prosecutor of the pleas for a verdict and judgment, and that without even showing cause to believe that it is really an opinion of the prosecutor. It is unnecessary to say more.

The next question arises on the challenge to the array, because the sheriff, who acts as a jury commissioner under the act of 1913 (P. L. 1913, p. 828), took an oath of office as such, and because the oath taken by the jury commissioner was not in the form required by the statute. This objection is sufficiently answered by the reasoning of the Court of Errors and Appeals in State v. Zeller, 83 N. J. Law, 666, 85 Atl. 237, L. R. A. 1917C, 217. It would be manifestly illegal to try the title of the sheriff or the Jury commissioner to his office in this merely collateral way. Each is, at least de facto, in possession of the office to which he was elected or appointed.

Another objection to the array is the manner of the selection of the jurors summoned. The general panel for the term in Sussex county consisted of 48 jurors, and a list of these jurors was served upon the defendant as required by the statute. It cannot now be claimed that the mere form of drawing 48 names from a general panel of 48 is necessary, when the general panel consists of exactly that number. That is required only when the general panel is composed of more than 48. State v. Tomassi, 75 N. J. Law, 739, 69 Atl. 214. What happened in the present case was that the jury commissioners, either on their own responsibility or the suggestion of the court anticipated that a large number of jurors might be required, and therefore drew from the whole list of eligible jurors, required by the act of 1913, a further panel of 24 in advance of trial-talesmen in the proper sense. This was proper. Patterson v. State, 48 N. J. Law, 381, 4 Atl. 449.

Another objection to the array was because at least 12 of the general panel had participated in the prior trial and conviction of Turko, and as the crime charged and facts proved were substantially the same it is urged that the jurors who sat in the Turko Case were not competent jurors for the trial of the present case. Stephens v. State, 53 N. J. Law, 245, 252, 21 Atl. 1038. It may be that this was good ground for challenge to the polls for favor, but a challenge to the whole array is very different from a challenge even to as many as 12 jurors for favor. The very fact that peremptory challenges are permitted is sufficient to show that the law does not expect a sheriff to secure in every case an impartial juror. No machinery is provided by which the sheriff can be certainly informed what jurors have sat upon a former trial. It is not suggested that the right of a defendant to an impartial jury needs such protection. It is, moreover, quite certain that, if such an objection were allowed as ground of challenge to the array, the difficulty of securing a trial in a criminal case would be insuperable. Sufficient protection is afforded by the number of peremptory challenges to the polls.

The defendant also claims that some of the challenges to the polls should have been sustained. All these challenges were based on the previous expression of opinion; most of the jurors said that their opinion, was such as would be overcome by evidence. Some admitted that it would take evidence to overcome it We think these challenges were properly overruled. Moschell v. State, 53 N. J. Law, 498, 22 Atl. 50. There is no suggestion that there was anything more than the formation and expression of a mere academic opinion.

Another objection to the array is that no women were selected as jurors. We need add nothing to what has already been said by the Chancellor, speaking for the Court of Errors and Appeals, in State v. James, 114 Atl. 553, 16 A. L. R. 1141. It is said that this...