State v. James

• Citation: 114 A. 553
• Parties: STATE v. JAMES.
• Decision Date: 20 June 1921
• Court: United States State Supreme Court (New Jersey)

114 A. 553

STATE

v. JAMES.

Court of Errors and Appeals of New Jersey.

June 20, 1921.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Camden County.

Frank J. James was convicted of murder in the first degree, and he brings error. Affirmed.

Harris & Harris, of Camden, for plaintiff in error.

Charles A. Wolverton, Prosecutor, and Al bert E. Burling, Asst. Prosecutor, both of Camden, for the State.

WALKER, Ch. The plaintiff in error was indicted jointly with Raymond W. Schuck for the murder of David S. Paul, on October 5, 1920. The court ordered that separate trials be accorded to each of the defendants The plaintiff in error was thereupon tried and convicted of murder in the first degree, without recommendation. He brings that conviction before this court for review under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863) on assignments of error and specifications of causes for reversal.

The assignments of error are six in number; so are the specifications of causes for reversal; and the assignments and specifications are the same in substance, although somewhat varied in words in some instances. Succinctly stated, they are as follows:

1. The said Frank J. James, the defendant, on being called to the bar, interposed a challenge to the array upon the ground that the commissioners of juries of the county of Camden deliberately failed and refused to select any women for jury duty although there were 5,000 or more women within the county qualified for jury service, but selected only men, which was and is contrary to the rights of the defendant under the Constitutions of the United States and the state of New Jersey and of the statute of said state of New Jersey in such case made and provided.

2. The court below erroneously admitted the alleged confession of the defendant before the corpus delicti had been proven. The state was permitted to offer the alleged confession for the purpose of proving the corpus delicti.

3. The court below erroneously refused to order the prosecutor of the pleas to furnish counsel for the defendant a copy of his alleged confession or statement before the same was offered in evidence in order to allow counsel to inspect the same to ascertain in advance whether it contained incompetent or illegal matter.

4. The court below erroneously refused to allow plaintiff in error to prove his family history showing that there had been in the immediate family a number of persons who were insane. That the jury was entitled to know the family history in order that they might consider that in arriving at a recommendation of imprisonment for life under the law of New Jersey of 1919. 5. The court below overruled the motion on behalf of the defendant to direct a verdict for the reasons as therein stated: (1) Because the court overruled the challenge to the array; (2) because the corpus delicti was not proven except by the confession of the defendant; (3) because the corpus delicti was not proven; (4) because no crime was proven to have been committed in Camden county; (5) because the court overruled the offer to prove the insanity of members of the defendant's family in order that the jury might consider the same in order to arrive at a conclusion as to whether a recommendation of imprisonment for life should be made.

6. The court erroneously refused to charge the request on behalf of the defendant as follows: If his mental condition was such as to render him incapable of forming the specific intent to kill, which is the essential ingredient of murder of the first degree, the prisoner will not be entitled to acquittal, but his offense will be murder of the second degree.

These assignments of error and specifications of causes for reversal will be considered in the order in which they are thus raised.

First. Upon being arraigned the defendant interposed a challenge to the array of jurors. The ground of the challenge was that in selecting the petit jury list of 500 names no women were chosen, and in the selection of the names from the list to be placed in the wheel no women were chosen, and that no women were on the panel. This is asserted to be an invasion of the defendant's constitutional rights, because, it is said, nowhere in the Constitution of the United States is it provided that jurors should be men, while it is therein provided that a defendant shall be tried by an impartial jury, and our state Constitution provides for trial by an impartial jury, and our statute has determined the qualifications of jurors thus: "He shall be a citizen of this state," etc.

The Constitution of New Jersey relating to jury trials (article 1, §§ 7, 8), omitting an irrelevant provision, reads:

"Sec. 7. The right of a trial by jury shall remain inviolate.

"Sec. 8. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury."

This constitutional guaranty as to the right to jury trial has been held to be trial by a jury at common law. State v. McCarthy, 76 N. J. Law, 295, 297, 69 Atl. 1075; Brown v. State, 62 N. J. Law, 666, 676, 678, 42 Atl. 811. A common-law jury consisted of "12 free and lawful men." 3 Bl. Com. 352. Women could not serve as jurors at common law except upon a jury to try an issue under a writ of de ventre inspiciendo—whether a woman be with child or not. 3 Bl. Com. 362. A petit or traverse jury is a body of 12 men who are sworn to try the facts of a case, as they are presented in the evidence. Cooley on Constitution Limitations (7th Ed.) p. 455. But our constitutional provisions in no wise trammel legislative power with reference to the qualifications of jurors.

Our statute relating to the qualifications of petit jurors is found in Comp. Stat. vol. 3, p. 2965, as follows:

"6a. Sec. 1. Every person summoned as a grand juror in any county in this state, and every petit juror returned for the trial of any action or suit of a civil or criminal nature, shall be a citizen of this state, and reside within the county from which he shall be taken, and above the age of twenty-one years and under the age of sixty-five years, and shall not, at the time of his selection by an official having, directly or indirectly, any official interest in or connection with the administration of justice. And if any person who is not so qualified shall be summoned as a grand juror or as a juror on the trial of any such action in any of the courts of this state, or if any person shall be summoned as a petit juror at any stated term of any court of this state, who has served as such at any of the three stated terms next preceding the day to which he may be summoned, it shall be good cause of challenge to any juror, who shall be discharged upon such challenge being verified according to law or on his own oath or affirmation in support thereof; provided, that no exception to any such juror on account of his citizenship, age or any other legal disability shall be allowed, if he has been sworn or affirmed."

While this statute does not provide in terms that men shall be summoned as jurors, it contains a distinct recognition of the common-law qualification that men only shall be impaneled by the use of the personal pronouns of the masculine gender "he" and "his." And it is not perceived how the sheriff could have summoned women under the law of this state as it stood at the time of the proceedings against the prisoner in this case without violating the oath of office which as sheriff-elect he was required to take according to the act concerning sheriffs (Comp. Stat vol. 4, p. 4839, § 3) that he—

"will truly, faithfully and impartially and with all convenient speed, summon, impanel and return, or cause to be summoned, impanelled and returned, good and lawful men for jurors, able and sufficient and not suspected or procured, as is or shall be directed by law."

The jury commissioner appointed by the Chancellor, who acts with the sheriff under the supplement to the act concerning juries (P. L. 1913, p. 828), known as the Chancellor-Sheriff Jury Act (Hudspeth v. Swayze, 85 N. J. Law, 592, 89 Atl. 780, Ann. Cas. 1916A, 102), is required, before entering upon the discharge of his duties, to take an oath faithfully and impartially to execute the duties of his office according to the best of his skill and understanding; and he is presumed to know and understand the law. That these required oaths were taken by the sheriff and the jury commissioner, and that they were subscribed and filed as required by the acts mentioned, is to be conclusively presumed, as it is not even suggested that they were not. The jury commissioner discharged his duty when, in collaboration with the sheriff, he summoned, or rather participated in the summoning, of men as jurors, for such was the law.

At the time of this homicide (October 5, 1920) and of the indictment (November 16, 1920) and trial of the defendant (December 16, 1920) the Nineteenth Amendment to the federal Constitution, enfranchising women, had been adopted (August 26, 1920) and was part of the law of the land. It reads as follows:

"The right of citizens * * * to vote shall not be denied or abridged by the United States or by any State on account of sex.

"Congress shall have power to enforce this article by appropriate legislation."

It will be observed that this part of the organic law makes no provision whatever about jurors. It emancipates women only so far as the right of suffrage is concerned, and leaves no impediment in the way of the Legislature clothing them with capacity to become and serve as jurors; and it may well be that the Legislature possessed that power before the adoption of this amendment. That, however, is a question with which we do not have to deal. But the amendment itself does not operate in terms or by implication to qualify women as jurors. It requires legislation to do that.

Justice Depue in Brown v. State, 62 N. J. Law, 666, 42 Atl. 811, went into the history of trial...