State v. Dolbow

• Decision Date: 02 February 1937
• Docket Number: No. 81.,81.
• Citation: 189 A. 915
• Parties: STATE v. DOLBOW et al.
• Court: New Jersey Supreme Court

189 A. 915

STATE

v. DOLBOW et al.

No. 81.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1937.

Appeal from Court of Oyer and Terminer, Salem County.

Marguerite Dolbow and Norman Driscoll were indicted for and convicted of murder, and they bring error.

Affirmed.

Thomas G. Hilliard and Henry Burt Ware, both of Salem, for plaintiff in error Marguerite Dolbow.

James Mercer Davis, of Camden (John Warren, of Jersey City, of counsel), for plaintiff in error Norman Driscoll.

W. A. W. Grier, of Salem, and Robert Peacock, of Mount Holly, for defendant in error.

LLOYD, Justice.

On the night of August 2, 1935, while Marguerite Dolbow and Harry Y. Dolbow, her husband, were living together on a farm in Mannington township, Salem county, the husband was killed by a series of blows on the head. That he was murdered seems not to be in dispute. Suspicion pointing to the plaintiffs in error, they were arrested, indicted, tried, and convicted of murder in the first degree without recommendation of life imprisonment, subsequently being sentenced to death in accordance with the statute.

It is this conviction and sentence that the present writ of error was issued to review. The review is sought upon assignments of error and by the filing of causes for reversal under section 136 of the Criminal Procedure Act of 1898, page 915 (2 Comp.St.1910, p. 1863, § 136). These will be dealt with as presented and argued in the briefs of counsel for the plaintiffs in error.

The first two points argued are that the court erred in refusing to order a bill of particulars and in refusing to grant a severance of the defendants at the trial. These applications were addressed to the discretion of the court and the rulings thereon will not be disturbed unless the accused have suffered injury thereby. State v. Morris, 98 N.J.Law, 621, 121 A. 290, affirmed 99 N.J.Law, 526, 124 A. 926; State, v. Nixon, 86 N.J.Law, 371, 90 A. 1102. A careful examination of the indictment as applied to the facts and the subsequent proofs satisfies us that the defendants suffered no injury by the denial of either application.

The next point is that a series of questions directed to and answered by the defendant Dolbow were improperly received, as also a confession alleged to have been made by her, proof of which was re, ceived in evidence. It is urged that it was not adequately shown that these statements and confession were voluntary, and also that the court did not actually pass upon the issue of whether they were voluntary. We think these contentions are without merit. There was abundance of evidence that the confession was voluntary and freely given and the trial judge was justified in receiving the proofs. Such ruling was in itself a disposition of the preliminary issue.

The further point that this proof was improperly received in the presence of the jury is also without merit as the jury itself would be called upon to determine the credit to be accorded to the statements and confession thus admitted by the court. State v. Compo, 108 N.J.Law, 499, 158 A. 541, 85 A.L.R. 866.

Another series of complaints is that there was no evidence to show that the defendant Dolbow was a principal in the commission of the crime. The evidence of the state disclosed that the murder was carefully planned and arranged by the two defendants, and that it had been so planned and arranged for a considerable time prior to the night on which it was executed. Both of them had endeavored to induce the witness Drummond to carry out this conspiracy for them. It further shows that arrangements were made on the night when the blows were struck to effect the death of Dolbow at that time. It is true that Mrs. Dolbow was in the house, while the blows were struck immediately outside, but she was there aiding and abetting and in legal intendment was a principal in the offense if the state's evidence was believed. Roesel v. State, 62 N.J.Law, 216, 217, 41 A. 408; State v. Carlino, 98 N.J.Law, 48, 118 A. 784.

It is next objected that the statements made by each defendant were received to the prejudice of the other. It is only necessary to say that such statements were received with scrupulous care by the judge and with equal care limited in their effect as applicable only to the one making them.

The objection that the state was permitted to call witnesses in rebuttal on matters which were not strictly rebuttal is also without substance. The order of trial is within the discretion of the court. State v. Napolitano, 95 N.J.Law, 546, 113 A. 237.

Finally it is contended that there was error in following the procedure set forth in chapter 287 of the Laws of 1935, page 918 (N.J.St.Annual 1935, §§ 53—11a to 53—11c), which provides for the drawing of fourteen persons in the impaneling of the jury and this on the ground that the act is unconstitutional. This act provides:

"1. Any judge of the court of oyer and terminer, or judge of the court of quarter sessions, before whom a trial shall be commenced, which trial is likely to be protracted, may, in his discretion, order a jury empaneled not to exceed fourteen members, the members of which jury shall have the same qualifications and shall be empaneled and sworn in the same manner as is, or may be, provided by law for the empaneling of juries in such courts of oyer and terminer and courts of quarter sessions.

"2. All said jurors shall sit and hear said cause. Should any condition arise during the trial of said cause, which, in the opinion of the trial court, justifies the excusal of any of the jurors so empaneled from further service, he may do so, and the said trial shall proceed, unless the number of said jurors be reduced to less than twelve.

"3. In the event there shall be more than twelve jurors left on said jury, after the charge of the court, the clerk of the court, in the presence of said court, shall place the names of all of said jurors on slips, folded so as to conceal the names thereon, in a suitable box provided for that purpose by the clerk, and shall draw therefrom twelve names, the first drawn to act as foreman. The twelve members thus drawn shall then proceed to determine the issue presented, in the manner provided by law."

It is urged that the act is unconstitutional (1) in that it violates the due process clause of the Federal Constitution (Fourteenth Amendment) and (2) paragraph 7 of article 1 of our State Constitution.

The legislation is of a type, though differing in phraseology, yet not in principle, with that adopted in a number of our sister states, and has been induced no doubt by the widening scope of criminal trials and the danger of mistrial through death, illness, or other incapacity of jurors serving in such cases.

Trial by jury is undoubtedly not only of ancient origin, but has frequently been called the bulwark of our liberties. It was so deeply imbedded in the foundation of the common law that it was said no change of government could prevail to abolish it. 3 Blackstone's Commentaries, 349. It was composed of twelve men chosen from the viscinage and the common-law institution is undoubtedly the jury system that we have inherited from England. State v. James, 96 N.J.Law, 132, 114 A. 553, 556, 16 A.L.R, 1141. It is sufficient, however, if fundamentally retained.

As to the first contention that the act is violative of the due process clause of the Federal Constitution, we have no hesitation in holding that this provision is in no wise infringed. If the act is valid under our own Constitution, it requires no argument to show that the fullest protection was accorded to the defendants in the trial of the cause. They knew the charge against them. They had every right of challenge accorded them by law, the fullest opportunity to present their proofs and to obtain the rulings of the trial judge on questions or objections raised during the progress of the trial. No wrong was imposed in the manner of selection of the jury (unless the act be itself unconstitutional), in the rulings of the court, or in the submission of the cause to the jury.

Turning to our own State Constitution, it provides in article 1, paragraph 7, that "the right of a trial by jury shall remain inviolate; but the legislature may authorize the trial of civil suits, when the matter in dispute does not exceed fifty dollars, by a jury of six men."

The inventions and discoveries of modern science open wide the door to the criminal, and of necessity must be likewise availed of by society to secure the conviction and punishment of offenders. These inventions and discoveries greatly expand the character, quality, and quantity of proof adduced, thereby widening trials in time far beyond those in the days of our fathers.

It has been universally conceded that the greatest deterrent to crime next to certainty of punishment is the promptness of trial and conviction. Not only does such promptness produce efficient results in the seclusion or extermination of offenders, but results far greater are secured in restraining those criminally inclined. Trials long deferred, or delayed, result in the loss of evidence through death, illness, absence, and obscured memory of witnesses. One of the great causes of defeated justice has been the mistrial due to the death, illness, or other incapacity of jurors, thus necessitating retrial with the resultant dangers of the type referred to.

It is in this situation that legislation of the class here involved has found its origin and must be sustained if not clearly in conflict with our fundamental law.

Every presumption is in favor of the constitutionality of legislation, and an act must be sustained unless clearly repugnant to the Constitution of the state. Attorney General v. McGuinness, 78 N.J. Law, 346, 75 A. 455.

Starting with this presumption and obligation in construction are we obliged to find that the act wherein it requires that fourteen shall be sworn, two eliminated by lot, and the remaining twelve left to...