State v. Deliso

• Decision Date: 02 March 1908
• Citation: 75 N.J.L. 808,69 A. 218
• Parties: STATE v. DELISO.
• Court: New Jersey Supreme Court

69 A. 218

75 N.J.L. 808

STATE

v. DELISO.

Court of Errors and Appeals of New Jersey.

March 2, 1908.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Middlesex County.

Pasquale Deliso was convicted of murder, and brings error. Reversed.

Alan H. Strong, for plaintiff in error. George Berdnie, for the State.

GARRISON, J. The plaintiff in error, having been convicted of murder in the first degree and sentenced to death in the court of oyer and terminer of Middlesex county, brings this writ of error to reverse the said judgment.

Observing the order adopted in the brief of counsel, the first ground for reversal to be considered is that "the court erred in permitting the state to challenge a juror peremptorily after the administration of the oath had been begun."

The incident of the trial to which this contention is deemed applicable was as follows: A juror of the general panel having been called, and a challenge to the favor made by the state, the juror was sworn on voir dire, and examined by the prosecutor and by counsel for the prisoner. When counsel had finished their examinations, the succeeding occurrences as narrated in the bill of exceptions were as follows:

"Mr. Strong: Does the court sustain the challenge?

"The Court: No; I overrule the state's challenge.

"The Clerk: Does the defense challenge?

"Mr. Strong: No.

"(The clerk began to administer the oath to the juror.)

"Mr. Berdine: The state peremptorily challenges.

"Mr. Strong: I submit it is too late. After the oath has been started, and after the state has challenged to the favor and has not challenged further, and the defense has been called upon to challenge, it is too late, it seems to me.

"The Court: I think the state ought to interpose a peremptory challenge before the administration of the oath has begun for the purpose of securing orderly procedure. In this case, however, the clerk had barely started to administer the oath when the challenge was Interposed. I will sustain the state's challenge."

The contention on behalf of the plaintiff in error is that the trial court, in sustaining this challenge, exceeded its lawful authority to the prejudice of the prisoner. The legal proposition upon which this contention rests is "that a peremptory challenge Interposed after the clerk had commenced to administer the oath comes too late," in support of which proposition Leary v. North Jersey Street Railway Company, 69 N. J. Law, 67, 54 Atl. 527, and State v. Lyons, 70 N. J. Law, 635, 58 Atl. 398, are cited. The first of these cases was a Supreme Court decision in a civil cause, and involved the consideration of a statute that on its face applied to civil causes alone, and also the construction of a statute that on its face was applicable solely to challenges for cause. Obviously the question of the right of peremptory challenge in a criminal case was neither in fact nor on principle before the Supreme Court, or involved in its decision. The later case of State v. Lyons was a criminal case in this court upon the question of peremptory challenge, and would therefore be directly in point, if the plaintiff in error in the present case were complaining, as the plaintiff in error in that case was, of the denial of his right of peremptory challenge, i. e., the curtailing of his right to reject a juror. The argument presented to us, in so far as it seeks support from State v. Lyons, loses sight of the fundamental principle that the right of challenge is a right to reject, and not a right to select. Thompson on Trials, p. 43. United States v. Marchant & Colson, 12 Wheat. 480, 6 L. Ed. 700.

The essence of the right of challenge is that it shall afford an opportunity to every person to say that some particular jurors shall not try him, but it is no part of this or of any other system of trial known to our law (unless it be that of arbitration) that a person shall say by what particular jurors he or his cause shall be tried. A right that is in this sense unknown to the law is nonexistent as a legal right, and the denial of a right that is legally nonexistent cannot inflict a legal injury. In the recent case of State v. Moore, 68 Atl. 165, in this court, this doctrine was applied to the allowance of a peremptory challenge to a juror by one of two defendants jointly indicted against the protest of the other. The decision was that, even if the challenge was not one that the trial court was bound to allow, the non-challenging defendant was not in a legal sense injured thereby, the effect being merely to reduce the number of the general panel from which the trial panel was selected. In his opinion Mr. Justice Reed adverts to the circumstance that it did not appear in the record that the protesting defendant had exhausted his challenges, or that the selection of a jury from the general panel was impaired. The same may be said in the present case, although, in view of the statutory provision for summoning talesmen, the latter circumstance may be without significance. The matter decided was that the allowance of a peremptory challenge was not a ground for reversal upon error so long as neither the right of the plaintiff in error to have a trial jury selected from the jurors legally summoned nor his right to reject such jurors was impaired.

It should furthermore be pointed out that the case of the State v. Lyons is not only not an authority for the position taken by the counsel who cites it, but that, on the contrary, it is a distinct authority against such position, and in favor of the judicial action of which complaint is made. State v. Lyons, as has been said, directly involved the right of the prisoner to reject by peremptory challenge a given juror. The precise question presented was, When did such right end? Or rather whether it was at an end when the clerk, in obedience to the direction of the court, had commenced to administer the prescribed oath to the juror. The proceedings at the trial as certified upon that writ of error recited that one Lappan, a juror, being called, came to the bar of the court, and after the prisoner had been formally interrogated by the clerk, "Do you challenge?" the juror remained standing until a proper and reasonable time had elapsed for a challenge to be made, after which, no challenge having been made, the court directed the clerk to swear the said Lappan as a juror. Thereupon the said Lappan placed his hand upon the book, and the clerk proceeded to administer to him the juror's oath, and after the clerk had commenced to recite the words of the oath, and before he had completed it, counsel for the prisoner communicated with the court a desire to challenge the juror peremptorily, which the court refused to entertain, upon the ground that the proper time for the prisoner to challenge the juror had gone by. In sustaining the propriety of this judicial action Chancellor Magie, who delivered the opinion of this court, said: "The ancient practice is stated to be that upon the return of the panel and the calling of the jury the prisoner in a capital case is informed by the clerk that these good men now called and appearing are to pass upon his life and death. Therefore, if he will challenge any of them, he is to do it before they are sworn. * * * By our provisions for a general panel of jurors, out of which a particular jury is selected by being drawn from the box, a modification of this practice has been introduced, and each juror whose name is drawn from the box is commanded to look upon the prisoner, and the latter is asked if he challenges. If no challenge is interposed within a reasonable time, the court directs the juror to be sworn. Upon such direction, or upon the oath being commenced in obedience thereto, the privilege of peremptory challenge ceases."

This quotation from the opinion in State v. Lyons makes it perfectly clear that what was decided in that case was that, when the court directed the juror to be sworn, the right of challenging was at an end. The decision, therefore, places the decorum of the trial and the orderly procedure essential to the rights of the parties wholly in the hands of the court, a result that it is obvious could not be otherwise attained. Whether time for consultation as to the making of challenges is to be allowed, and whether the proper and reasonable time for making a challenge has elapsed, are questions to be determined by the trial court. Having determined them, the court, in fact or in theory, directs the clerk to administer the oath. The commencement of the administration of the oath is therefore normally a judicial announcement that the time for challenging a juror has been allowed and is at an end. The entire spirit of the rule thus laid down, and its essential feature, is the judicial participation in the procedure. If we turn now to the proceedings at the trial under review as excerpted in an earlier part of this opinion, it will be seen at once that this essential feature, viz., the judicial direction to the clerk to administer the oath, was conspicuously absent. On the contrary, the certificate shows that the judge had been and was occupied with the trial and decision of a challenge for cause, and had but barely disposed of it when the clerk asked the prisoner if he challenged, and began to administer the oath to the juror, whereupon the prosecutor announced that he challenged. That this action of the clerk was expressly directed by the court is not pretended. That the trial judge had allowed what he considered a reasonable time for challenge cannot be assumed, for apparently his attention had not been directed to the matter. That the court either ratified or acquiesced in the unauthorized expedition of its ministerial officer is directly negatived by the court's own and immediate action in the premises. Confronted with this state of affairs, the case of State v. Lyons was a direct authority for the action of the trial judge in refusing to deny to the state the...