State v. Lang

• Decision Date: 10 June 1907
• Citation: 75 N.J.L. 1,66 A. 942
• Parties: STATE v. LANG.
• Court: New Jersey Supreme Court

66 A. 942

75 N.J.L. 1

STATE

v. LANG.

Supreme Court of New Jersey.

June 10, 1907.

Error to Court of Oyer and Terminer, Middlesex County.

Frederick Lang was convicted of murder in the first degree, and he brings error. Affirmed.

Argued February term, 1907, before GUMMERE, C. J., and GARRETSON and REED, JJ.

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

GUMMERE, C. J. The plaintiff in error was tried and convicted in the Middlesex oyer and terminer upon an indictment charging him with the murder of one Katie Gordon, and the jury, by its verdict, fixed the grade of his crime as murder in the first degree. The entire record of the proceedings had at the trial has been returned with the writ as provided by the 130th section of the criminal procedure act of 1898 (P. L. 1898, p. 915).

The first and second causes of reversal challenge the correctness of the ruling of the trial court in sustaining a demurrer to a plea in abatement filed by the defendant, and in overruling a motion to quash the indictment. Both the plea and the motion were rested upon the same proposition, viz., that the indictment was not found by a lawfully constituted grand jury, because two of the members of that body were over 65 years of age. By the provision of our statute which prescribes the qualifications of grand jurors it is enacted that "every person summoned as a grand juror in any court of this state shall be a citizen of this state, and resident within the county from which he shall be taken, and above the age of twenty-one and under the age of sixty-five years; and if any person who is not so qualified shall be summoned as a grand juror it shall be good cause of challenge to any such juror; provided that no exception to any such juror on account of his citizenship or age shall be allowed after he has been sworn or affirmed." Gen. St. p. 1853, § 6. It appears upon the face of the indictment that the crime charged against the defendant was committed by him while the grand inquest was in session. He was therefore debarred by the statute from interposing a challenge to any of its members on account of age; and the basis of his plea in abatement, and of his motion to quash, is that the deprivation of this right—which is afforded to all persons who are charged with violations of the criminal law which have occurred prior to the impaneling of the grand jury—is a denial of that equal protection of the laws which is guarantied to every person by the fourteenth amendment to the federal Constitution. It is settled in this state that the improper composition of a grand jury will not constitute a ground for a plea in abatement. The remedy in such case is to challenge before indictment found, or to move to quash afterward. Gibbs and Stanton v. State, 45 N. J. Law, 379, 46 Am. Rep. 782; same case on error, 46 N. J. Law, 353. And where the defendant has had an opportunity to challenge a grand juror before he is sworn, and has neglected to avail himself of it, he cannot afterward take advantage of the lack of qualification of such grand juror by a motion to quash the indictment. State v. Hoffman, 71 N. J. Law, 285. 58 Atl. 1012. The ruling of the trial court, therefore, sustaining the demurrer to the plea in abatement, was proper, under the cases cited, for the reason that the defendant was not entitled to question the legality of the grand jury by such a plea. But, as he had been afforded no opportunity to interpose a challenge to either of the members of that body who were over the age of 65 years, he was entitled to attack the legality of the body by a motion to quash, and the determination of the propriety of the action of the trial court in overruling that motion requires a consideration of the meritorious question presented thereby.

The proposition that the cited provision of our jury act is violative of the fourteenth amendment of the federal Constitution, because it does not afford to all persons charged with crime equal protection, seems to us to be unsound. The reason why the Legislature has seen fit to confer upon a person who is charged with a criminal offense the privilege of challenging a grand juror who is over 65 years of age, provided the challenge is interposed before the grand juror is sworn. is not easy to understand. It is plain, how ever, that it was not for the purpose of protecting the alleged criminal against an unfounded indictment; for the Legislature, by providing that, after such grand juror is sworn, he shall be as fully qualified to serve as if he had been under the stated age, has recognized that advancing years is no ground for imputing lack of impartiality to a citizen who is drawn for grand jury service. We are not able to perceive, nor has counsel pointed out to us, how the privilege of interposing a challenge on such ground affords any "protection," within the meaning of the federal Constitution, to a person charged with crime. But, assuming that some benefit is conferred by the privilege to those persons whose alleged violations have antedated the impaneling of the grand jury, and that the benefit is not shared in by those who are charged with having committed crimes while the grand jury is in session, the fact that the latter class are not permitted to share in the benefit does not constitute a violation of the equal protection clause of the fourteenth amendment. As was declared by the Supreme Court of the United States in Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578, that provision "does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed." It was this view of the scope of the provision which led the same tribunal, in the case of Missouri v. Lewis, 101 U. S. 22, 25 L. Ed. 989, to hold that it was not violated by a statute which permitted an appeal from the final judgment of certain of the circuit courts of the state of Missouri, and denied it as to judgments rendered by others of such courts, and which led to the conclusion in Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119, that the amendment did not prohibit a state from enacting that, in a criminal trial had before a struck jury, the defendant should be entitled to only 5 peremptory challenges, although ordinarily on the trial of indictments the right to 20 peremptory challenges was given. Our act prescribing the qualification of grand jurors treats alike all persons charged with crime, under like circumstances and conditions. The province of the grand jury is to make diligent inquiry concerning all alleged violations of the criminal law, not only those which have occurred before its organization, but those which have occurred...