State v. Martin
| Decision Date | 01 March 1920 |
| Citation | 109 A. 350 |
| Parties | STATE v. MARTIN. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Court of Oyer and Terminer, Essex County.
Camill Martin was convicted of murder in the first degree, and he brings error. Affirmed.
See, also, 92 N. J. Law, 436, 106 Atl. 385.
Frank M. McDermit, of Newark, for plaintiff in error.
Wilbur A. Mott, of Newark (J. Henry Harrison, of Newark, on the brief), for the State.
SWAYZE, J. Camill Martin was convicted of murder in the first degree and brings error.
The first error assigned relates to the drawing of the jury. A special panel had been drawn and served upon the prisoner in accordance with section 82 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1847). Sixteen of the members of this panel did not answer when the names were called, but no objection was then made by the plaintiff in error, and the sheriff proceeded to draw the jury for the trial of the case. Seven jurors were drawn, when the sheriff announced that the special panel was exhausted. The court thereupon ordered the general panel to be sent for, and the sheriff proceeded to draw talesmen from the general panel. There was objection, upon the ground that the prisoner was entitled to have the names of the jurors for the trial of the case served upon him, and that he could not be said to have had that statutory right when only 32 of the 48 appeared. The sheriff put the names of all the jurors on the general panel in the box, and objection was made upon the ground that this led to calling over again jurors who had already been called out of the special panel. The court overruled the objection. We think that the provisions of section 83 of the Criminal Procedure Act justified this ruling. It enacts that, "when the special panel or list of jurors served on a defendant * * * shall be exhausted from any cause before a jury for the trial of the indictment shall be obtained, talesmen shall be taken from the general panel of jurors returned for the term at which such defendant is to be tried, if any remain," and then proceeds to provide for talesmen after the general panel is exhausted, to be summoned from the bystanders. This language is broad, and was evidently intended to prevent difficulties which had probably occurred prior to its enactment. The point taken on behalf of the plaintiff in error, that every juror on the special panel should be present in court when the case is called for trial, is contrary to the rulings in Patterson v. State, 48 N. J. Law, 381, 384, 4 Atl. 449, and State v. Rosenthal, 85 N. J. Law, 564, 89 Atl. 1045, affirmed 86 N. J. Law, 705, 92 Atl. 1087. What the defendant is entitled to is a trial by an impartial jury, and he evidently thought that such a jury could be secured, notwithstanding the absence of the 16 jurors, for he raised no objection. This assignment of error is therefore without force.
2. The police surgeon, who saw the prisoner about the time of his arrest, testified that he made an examination as to defendant's mental and physical condition, and that he found him mentally normal; that in all respects his mentality was normal. After the evidence had been given, the defendant's counsel objected upon the ground that there was a presumption of sanity. The objection was not interposed at the proper time; but, assuming that the plaintiff in error was entitled to the benefit of the objection, it is still without force. The state was not obliged to prove the sanity of the prisoner; but it was not objectionable for it, when the doctor was on the witness stand, to ask him the question. It was entirely proper evidence, and the time of its introduction was largely a matter of convenience and discretion.
3. The third point made is that the statement made by the prisoner was improperly admitted in evidence. We find ample proof that it was a voluntary statement, and nothing to suggest that it was made under the influence of hope or fear. This objection also fails.
4. This was the second trial of the case, and the prosecutor of the pleas read to the jury some of the testimony of the defendant at the former trial. Objection was made that it was improper to read only a portion of the testimony. That was a valid objection, but the counsel for the state made a frank and full offer to read all the testimony that the prisoner's counsel thought he ought to read, and counsel pointed out no substantial omissions. We think this objection also fails.
5. The accusation of the state was that the prisoner had committed the murder while engaged in robbing a jeweler and dealer in precious stones. The state offered evidence of the sale of some of the articles to a bootblack, called Tony, by a man named Jesse Jcrardo, and evidence was offered of the conversation between Tony and Jerardo with reference to the sale, not in the presence and hearing of the prisoner. This was objected to as hearsay. It appeared, however, and was...
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