State v. McNamara

• Citation: 185 A. 479
• Decision Date: 20 May 1936
• Docket Number: No. 157.,157.
• Parties: STATE v. McNAMARA.
• Court: United States State Supreme Court (New Jersey)

185 A. 479

STATE

v. McNAMARA.

No. 157.

Court of Errors and Appeals of New Jersey.

May 20, 1936.

(dissenting).

For majority opinion, see 184 A. 797.

BROGAN, Chief Justice (dissenting).

The trial court, in my judgment, fell into reversible error in the impaneling of the jury, by overruling a peremptory challenge by the defendant, addressed to the eleventh and twelfth jurors. The opinion of the majority holds that this question was not raised by proper exception. This conclusion seems untenable.

The defendant was being tried before a struck jury, as provided for by statute entitled "A Further Supplement to an act entitled 'An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases' (Revision of 1898), approved June fourteenth, one thousand eight hundred and ninety-eight," approved April 30, 1929. P.L. 1929, c. 246, p. 459 (Comp.St.Supp. 1930, § 53—76a (1).

The list of 36 jurors from which the trial jury should have been selected was exhausted at a point when only 10 jurors were in the box. At this juncture, the impaneling of a struck jury for the trial of this indictment failed. This is an obvious truth. The court then had recourse to jurors from the general panel. To this method of completing the trial jury no objection was offered. The defendant had already exhausted the five peremptory challenges permitted by the Struck Jury Act (Stat. § 81, as amended by P.L. 1930, p. 995 [Comp.St. Supp. 1930, § 53—811). But when the names of jurors from the general panel were placed in the box and the drawing of names continued, defendant attempted to exercise a peremptory challenge to the eleventh juror thus called. The court overruled the challenge, defense counsel prayed an exception, which was allowed and sealed. Why this does not efficaciously raise an assignment of error and a specification of cause for reversal is not clear. Defense counsel, in his argument at this point, stated to the court that he had no objection to names from the general panel being used to complete the jury so long as he might have 20 peremptory challenges, which right is afforded those on trial for murder where a jury other than struck or foreign juries are to hear and determine the case. And so this objection at the particular time seems to have raised the fundamental question, i. e., the method of impaneling the jury. No utterance by the court, up to this point, put counsel on notice that he would be foreclosed from asserting this right of challenge. The position taken by defendant that the trial jury might be completed from a list other than the struck jury panel, could not be enlarged into a consent that he was to have no further right of peremptory challenge. On the contrary, the exception reverted to the court's action, initially, in going to the general panel for the selection of a petit or traverse jury.

In passing, it might be observed that section 76 (Criminal Procedure Act, supra), which deals with the selection of struck juries, was amended by ...