State v. Martin

• Decision Date: 01 February 1926
• Docket Number: No. 84.,84.
• Citation: 132 A. 93
• Parties: STATE v. MARTIN.
• Court: New Jersey Supreme Court

132 A. 93

STATE

v. MARTIN.

No. 84.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1926.

(Syllabus by the Court.)

Minturn, Kalisch, Campbell, and Kays, JJ., dissenting.

Error to Court of Oyer and Terminer, Essex County.

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

Carl Abruzzese, of Newark, for plaintiff in error.

John O. Bigelow and J. Victor D'Aloia, both of Newark, for the State.

KATZENBACH, J. This case is before us upon a writ of error directed to the Essex county court of Oyer and Terminer. The writ has brought to this court for review the conviction of Frank Martin of murder in the first degree. The ease is before us on strict writ of error, as well as under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). On May 23, 1925, at about 3:30 p. m., Frank Martin came to his home in Bloomfield, N. J. He lived with his wife, his daughter, Violet Smith, wife of A. G. Smith, a daughter, Helen, and a son, Frank, Jr. His son-in-law was also a member of the family. Upon arriving at his home he had a dispute with his wife and daughter, Mrs. Smith. Two police officers were summoned. Mrs. Smith, whose collie dog was said to have been the cause of the argument, refused to make a complaint against her father. The officers left. About 15 minutes after they left they were again called to the house by Mrs. Martin. On the floor of the living room the officers found the body of Mrs. Smith. She was dead. There were a number of cuts on the body, apparently made by a hatchet. A hatchet was found on the premises. Martin was found slipping on a shirt. He was taken into custody. Later in the day Martin made a statement to the effect that his daughter, Mrs. Smith, brought the collie dog into the room. The dog made a rush for him. He grabbed a chair and made a rush at the dog. Mrs. Smith called to the dog and the dog came to her. The dog then came at him again. He then went into a pantry, got a hatchet, and threw the hatchet at the dog. It missed the dog, but hit Mrs. Smith on the head. She fell to the floor. He spoke to her, but she did not answer him. He then waited for his wife to come in. She did not come, so he finished the job by hitting Mrs. Smith on each leg with the hatchet. He gave as the reason for finishing the job that his daughter and son-in-law had given him a rotten deal when he was sentenced to a term in the New Jersey state prison at Trenton, some 2 years before the death of Mrs. Smith.

The assignments of error are 44 in number. The specifications of causes for reversal number 33. The brief submitted for the plaintiff in error argues such of these which are not abandoned under 16 points. The points argued fall into 4 groups; namely, the questions which arose (a) in selecting the jury, (b) in the admission and rejection of testimony, (c) in the ruling of the trial court refusing to direct a mistrial, and (d) in the charge of the trial judge.

Pursuant to section 82 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1847), a special panel of 48 jurors were drawn from the general panel and summoned. The defendant at the trial challenged the array. The first ground for this challenge was that one Edgar Blackledge named on the list had not been summoned. To prove that Blackledge had not been summoned the under-sheriff of Essex county was sworn as a witness. He had no personal knowledge of the facts, but was allowed to read into the record a memorandum which had been made to the effect that the summons for Blackledge had been served on the housekeeper, June 5th; that it had been served by Peter Flanagan, June 20, 1925. The memorandum also contained the words "In Chicago, Illinois, A. Walker." A. Walker was also a deputy sheriff. He was sworn, and testified that he had no personal knowledge of the facts, but had been informed by the jury commissioner that Blackledge was in Chicago. The memorandum referred to was not a public record. It was not evidential. Assuming it to be evidential it did not prove that Blackledge had not been summoned. It apparently showed that the summons for Blackledge was served on his housekeeper, then served personally, and then Blackledge went to Chicago. The law is that jurors may be summoned by notice served personally or left at the juror's dwelling house. 3 Comp. St. p. 2966, § 8. There was a failure of proof that Blackledge had not been summoned. On this ground the trial judge properly overruled the challenge to the array. If Blackledge had not been summoned in accordance with the provisions of the statute, this would not have been a sufficient ground to uphold the challenge to the array. Failure to serve a member of a special panel does not vitiate the entire proceeding.

The second ground advanced for a reversal of the ruling of the trial judge on the challenge to the array is that between the service of the special panel upon the defendant and the day of trial 10 jurors drawn on the special panel had been excused by the court. This point has been heretofore raised, considered, and held to be without merit. Patterson v. State, 48 N. J. Law, 381, 4 A. 449. In Aaronson v. State, 56 N. J. Law, 9, 27 A. 937, the precise point raised in the present case was decided in an opinion by Chief Justice Beasley. The court in that case held that for reasonable cause a juror whose name is on a list of 48 names served upon the prisoner may be discharged by the court. The opinion says:

"If one or more of the persons on the general list can be discharged from service, why not one or more be similarly discharged from the special list?"

In State v. Martin, 94 N. J. Law, 139, 109 A. 350, it was held that the absence of 16 jurors of the special panel of 48 was not a ground for reversal. If this were not the law, it would be difficult to bring a defendant to trial. While the defendant has no legal right to complain of the court's exercising its right to excuse jurors from service for reasonable cause, it is, however, a right which in justice to the defendant should be sparingly exercised.

The plaintiff in error next contends that the trial judge erred in disallowing challenges to the polls for cause. There were 4 jurors who were examined and were challenged by the defendant below. Assuming for argument that the challenges were made and wrongfully disallowed, the record discloses no harm or prejudice to the defendant by these rulings. The jurors mentioned were not members of the jury which tried the defendant. They must have been therefore challenged peremptorily. The defendant was allowed 20 peremptory challenges. He challenged peremptorily 16 jurors. His peremptory challenges were not exhausted when the drawing of the jury was completed. He was therefore not harmed by the rulings of the trial judge of which he now complains. Such rulings constitute no ground for reversal. Drake v. State, 53 N. J. Law, 23, 20 A. 747.

The next point argued deals with the refusal of the trial judge to permit the defendant's counsel to ask a juror as to what his opinion was as to the guilt or innocence of the defendant. The juror had not been challenged. There was no issue before the court. The ruling of the trial judge was correct. It is supported by the cases of Clifford v. State, 61 N. J. Law, 217, 39 A. 721, and State v. Palmieri, 93 N. J. Law, 195, 107 A. 407; both cases being decisions of this court. The juror to whom the question mentioned was directed did not sit as a member of the jury which tried the defendant. The defendant was therefore not prejudiced by the ruling of the trial judge. This concludes the consideration of the group of assignments of error and specifications of causes for reversal dealing with the selection of the jury.

Counsel for the plaintiff in error next argues assignment No. 11. This deals with an exception taken to the statement of the trial judge that he would permit a witness to refresh his recollection from a statement made by the defendant. While Joseph J. Huddy, chief of police of Bloomfield, was being cross-examined, he was asked a question. Before answering it the trial judge said that if counsel were referring to matters in a statement made by the defendant he would give the witness the privilege of refreshing his recollection from the statement. The defendant's counsel then stated that the witness had not yet stated he needed to refresh his recollection, to which the trial judge replied that he was merely advising the witness that he might do it. An exception was then taken to this ruling. The record fails to disclose that the witness refreshed his recollection by looking at the defendant's statement. As he did not use the statement, no harm was done the defendant, assuming that the trial judge erred in his ruling.

The assignment of error next argued deals with the overruling of objections made to questions asked by the prosecutor upon the cross-examination of certain witnesses called by the defendant. The ground of objection was that the cross-examination was upon matters not touched upon in the direct examination. An examination, however, of the testimony, satisfies us that the questions allowed upon cross-examination were proper, as they tended to test the accuracy of statements made upon direct examination by the witnesses. The defendant's counsel objected to questions asked Amelia Dillon, a sister of the defendant, as to conversations she had had with her brother, the defendant. This witness was called to testify as to the nervous condition of the defendant. On direct examination she was asked this question:

"What was there about him which made you come to the conclusion that he was nervous, what did he do and what did he say, if anything?"

This opened the door to the questions objected to which related to conversations which she had had with the defendant. The state had the right to show by conversations of the defendant the cause of the defendant's nervousness, to which the witness had...