State v. Carlino

• Decision Date: 19 November 1923
• Docket Number: No. 109.,109.
• Citation: 122 A. 830
• Parties: STATE v. CARLINO.
• Court: New Jersey Supreme Court

122 A. 830

STATE

v. CARLINO.

No. 109.

Court of Errors and Appeals of New Jersey

Nov. 19, 1923.

(Syllabus by the Court.)

Error to Supreme Court.

Angelo Carlino was convicted of murder in the first degree. The judgment was affirmed by the Supreme Court (118 Atl. 784), and he brings error. Affirmed.

Egbert Rosecrans, of Blairstown, and William A. Dolan, of Newton, for plaintiff in error.

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

PER CURIAM. The defendant was convicted of murder in the first degree in the Sussex oyer and terminer, and sued out a writ of error to the Supreme Court, where the judgment was affirmed. He has now brought error here. One of the assignments of error in the Supreme Court brought up with the record is that the trial court erred in overruling the several challenges interposed to the array of jurors upon various grounds, only one of which we think it necessary to deal with, namely, that concerning the challenge to the array for bias or partiality of 12 jurors on the panel of 48 served upon the defendant.

In State v. Barker, 68 N. J. Law, 19, 52 Atl. 284, the question as to whether the presence of disqualified jurors on the panel was ground of challenge to the array was considered, but not decided. The Supreme Court there said that whether it was good ground was at least doubtful, saying it was stated in Thompson & M. Juries, 115, § 139, that it is not a ground, and that the same thing is stated in Rap. Crim. Pro. § 138, and, further, that, if this is good ground for challenge to the array, the facts showing how disqualification arises must be set forth in the challenge. This requirement was met in the present case, counsel for defendant interposing a challenge to the array on the ground (among others) that out of the panel of 48 names served on the defendant 12 of the jurors were disqualified, as they sat upon the trial of Antonio Turco, who had been tried and convicted of murder growing out of the robbery in which the defendant was involved, and likewise indicted for the same murder. The Supreme Court, in dealing with this question, said that it was urged that the jurors who sat in the Turco Case were not competent for the trial of the Carlino Case, citing Stephens v. State, 53 N. J. Law, 245, at page 252, 21 Atl. 1038, saying, also, that it may be that the objection was good ground for challenge to the polls for favor, but that a challenge to the whole array was a very different thing from a challenge even to so many as 12 jurors for favor. This disallowance of the challenge by the trial court was sustained.

In Stephens v. State a challenge to the array, founded on the fact that in making up the jury list the assistant clerk, and not the clerk, officiated, was disallowed; but in that case, on a challenge to the polls that a juror who sat in a previous trial during the term, involving, in substance, a consideration of the same testimony in its application to a similar offense as that embraced in the trial then being had, was assigned. Chief Justice Beasley, who wrote the opinion, remarked that a juror having...