State v. Dedge

• Decision Date: 30 January 1925
• Docket Number: No. 36.,36.
• Citation: 127 A. 539
• Parties: STATE v. DEDGE.
• Court: New Jersey Supreme Court

127 A. 539

STATE

v. DEDGE.

No. 36.

Court of Errors and Appeals of New Jersey.

Jan. 30, 1925.

Error to Supreme Court.

Justin W. Dedge was convicted of libel, and from judgment of the Supreme Court (125 A. 316) affirming judgment of conviction he brings error. Affirmed.

Andrew Van Blarcom, of Newark, for plaintiff in error.

Wilfred H. Jayne, Jr., of Lakewood, for defendant in error.

KALISCH, J. The plaintiff in error was convicted in the Morris county oyer and terminer on an indictment charging him with a malicious publication of a libel of and concerning Ex-Attorney General McCran, in bis official conduct as such Attorney General, and on said conviction was sentenced to imprisonment in the state prison for a term not more than two years and no less than one year. On appeal to the Supreme Court the conviction and judgment were affirmed.

The libel was in the form of a letter written by the plaintiff in error to the Jerseyman, a newspaper published and circulated in Morris county, and which written communication purported to be a review and criticism of the official conduct of those intrusted with administering the law in Morris county, but apparently was an especial attack upon the conduct of the Attorney General in presenting the evidence before the grand jury and in the trial of the case against one Frank Jancarek, who was indicted for the murder of Janet Lawrence, despite the fact that there was a well-founded basis that one Francis Kluxen committed the deed. On the trial, which was conducted by the Attorney General for the prosecution, Jancarek was acquitted. Public opinion was running against Francis Kluxen as the murderer, and he was indicted for the homicide and tried by a foreign jury, and was acquitted.

In this latter case Ex-Prosecutor Harrison of Essex county prosecuted for the state. The libelous article was written some time after the events alluded to. The appeal to this court is based upon 31 assignments of errors and 35 specifications of causes for reversal.

The review of this case is before us on a strict writ of error and under the 136th section of the Criminal Procedure Act ( 2 Comp. St. 1910. p. 1863).

The assignments and specifications are argued in the brief of counsel of plaintiff in error under 10 points. The last point may be considered by us first, for it attacks the validity of the trial for the following reasons:

"(1) Because the plaintiff in error was illegally tried before a foreign jury, in that the statute provides that the foreign jury shall be returned to the circuit court where the issue is triable, and this cause was not triable in a circuit court but before the Morris oyer and terminer.

"(2) Because the plaintiff in error was illegally tried before a foreign jury.

"(3) Because the plaintiff in error was denied the right of trial by jury.

"(4) Because the plaintiff in error was the defendant in a cause which was not triable in a circuit court, and therefore the provisions of the statute concerning foreign juries did not apply to him."

It is conceded that the return of the writ of venire facies was to the Morris county oyer and terminer, and because of that fact counsel on behalf of the plaintiff in error, before the jury was called, made this statement to the court:

"We would like to put in a challenge to the array, your honor, on the ground that under the foreign jury statute return should be made to the circuit court. I have not seen the return; have you the return of the jury. The return is in the Morris county oyer and terminer. The statute seems to say that the return should be made to the circuit court; that is, under section 79."

This appears to have been the case. No challenge to the array, in writing, seems to have been presented. Chitty on Criminal Law, vol.' 1, p. 445, says: "A challenge to the array must be made in writing." This is the recognized practice in this state. Smith v. Smith, 52 N. J. Law, 207, 208, 19 A. 255; Gardner v. State, 55 N. J. Law, 19, 26 A. 30; State v. Barker, 68 N. J. Law, 19, 52 A. 284. It further appears that counsel, on behalf of the plaintiff in error in a colloquy with the court, finally said, "I would like to withdraw that challenge to the array, because I do not want to run the risk of postponing the trial," and that concluded the matter so far as an offer to challenge the array was concerned.

Thus it is plain that counsel without any further objection consented to go to trial with the panel of jurors as returned. That the court of oyer and terminer, in which the plaintiff in error was tried and convicted, had jurisdiction of the offense and of the accused cannot be successfully controverted. The contention that the return was faulty, in that the venire facias was made returnable to the court of oyer and terminer instead of to the circuit court, is without merit.

The plaintiff in error waived the informality in the venire and went to trial, consenting to be tried by a jury selected from the panel returned. No constitutional right of the accused was thereby violated. He had a trial by a jury consisting of twelve impartial jurors. In order to have successfully taken advantage of the informality in the return of the venire, it became essential to interpose a challenge, in writing, to the array, and this was only not done but the proposal to make a challenge to the array was withdrawn.

Were it not for the fact that the Supreme Court, in dealing with this subject, upheld the legal propriety of the return of the venire to the court of oyer and terminer no further comment would have been necessary.

Answering the contention of counsel of plaintiff in error, in the Supreme Court, that the writ of venire was only properly returnable to the circuit court, the learned writer of the opinion said:

"While it is true that section 79 of the Criminal Procedure Act, relating to the trial of criminal cases by foreign juries, provides that the venire 'shall be returnable to the circuit court in which the issue is triable,' the word 'circuit' is obviously a mistake or misprint. The record shows the order for a foreign jury was made by the Supreme Court for the trial in the Morris county oyer and terminer (Record, p. 17), the jury to have been returned by the sheriff to the court (Record, p. 19). A statute should not be given an unreasonable, ridiculous, or absurd construction," etc.

The Supreme Court fell into error, and rather naturally so, in view of the fact that in the order, for summoning the foreign jury, obtained in a branch of the Supreme Court, it was inadvertently directed that a venire issue returnable to the court of oyer and terminer, which direction was, of course, a violent departure from the settled law and practice of this state relating to writs of venire for the summoning of juries in civil and criminal cases, as will be presently demonstrated.

But before taking up the task it is appropriate to mention in this connection that, while it may be that the failure to observe the statutory direction in summoning the foreign jury was a valid ground of challenge to the array, nevertheless, since it appears that no such challenge was presented in writing and passed upon by the trial judge, and that the plaintiff in error voluntarily went to trial by a jury of twelve impartial jurors, selected from the foreign jury panel, as summoned, his constitutional right to a trial by an impartial jury was not violated. Brown v. State, 62 N. J. Law, 666, 42 A. 811.

Returning from this digression, we will now take up for consideration the criticism made by the Supreme Court to the effect that the word "circuit" in the phrase "shall be returnable to the circuit court in which the issue is triable," contained in section 79 of the Criminal Procedure Act, "is obviously a mistake or misprint." It is neither the one nor the other. This statutory direction has been in existence for more than a century.

All writs for the summoning of juries, whether the general panel or struck jury or for a foreign jury, issued out of the Supreme Court, and were returnable to the circuit in which the issue was to be tried. Paterson's Laws, p. 137, § 6; page 259, § 1; Rev. 1821, p. 310, § 1.

The statute of 1799, after providing that the process for convening a jury to try an issue in the circuit court shall be a venire facias issuing out of the Supreme Court, further provides by section 11 that the sheriff or other officer of the county in which the said circuit court is held shall make return to the said court of all writs, and juries with the panels and other matters, relative to the same, legally arrayed and executed. Paterson's Laws, p. 394, §§ 9 and 11; Rev. 1821, pp. 454, 455.

These provisions have remained unaltered in substance up to the present time. See Rev. 1846, page 187, §§ 9, 11, and page 97, § 33, which latter section provides that the issuing, serving, and returning of writs of venire facias shall remain, as by law directed at the time of the passing of the act. See, also, Nixon's Dig. 1868, Title Juries, p. 452, § 33.

In 1877 the statutes of the state of New Jersey were revised by Mercer Beasley, the then distinguished Chief Justice, David A. Depue, an associate justice, and who near the close of his distinguished career became Chief Justice, and Cortlandt Parker, a distinguished lawyer of this state. These eminent jurists, equipped with a profound knowledge of the common and statute laws, revised the act concerning juries, and under the caption of "Foreign Jury," Rev. 1877, p. 530, gave form to and adopted in substance the prior legislation on the subject. For the purpose of clarity the provisions relating to a foreign jury are here cited in full.

"Section 36. The Supreme Court may, in its discretion, order trials by foreign juries in all cases, civil or criminal, which may have been commenced in that court, or may be removed to that court from any other court.

"Section 37. The Supreme Court, whenever in their opinion a fair and...