State v. Mohr

• Decision Date: 19 November 1923
• Citation: 122 A. 837
• Parties: STATE v. MOHR.
• Court: New Jersey Supreme Court

122 A. 837

STATE

v. MOHR.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

White, J., dissenting.

Error to Court of Oyer and Terminer, Burlington County.

Harry C. Mohr was convicted of first degree murder, and he brings error. Affirmed.

Walter S. Keown, of Camden, for plaintiff in error.

Jonathan H. Kelsey, of Mt. Holly, and James Mercer Davis, of Camden, for the State.

GUMMERE, C. J. The plaintiff in error, one Doris Brunen, and one Charles Powell were jointly indicted for the murder of John Brunen, who was shot and killed on the 10th of March, 1923. The shooting was done by Powell, at the instigation of Mohr, as the state claimed, who paid Powell a money consideration as an inducement to commit the crime. When the case was called for trial, the prosecutor of the pleas moved a severance as to the defendant Powell, and, this motion being granted, the trial proceeded against Mohr and Doris Brunen. The result was the conviction of Mohr of murder in the first degree and the acquittal of Doris Brunen. The present writ of error is sued out by Mohr to review the conviction had against him.

The first ground of reversal urged before us is that the trial court improperly overruled a challenge to the array of jurors. The proofs showed that some time prior to the trial the sheriff drew a special panel of 60 jurors, pursuant to an order of the Court of Oyer and Terminer, and that a list of these jurors was properly served upon the defendants. About a week later the court made a supplemental order, directing the sheriff to draw an additional panel of 120 jurors, and a list of this second panel was also duly served upon the defendants. The point of the contention seems to be that the making of this second order was beyond the jurisdiction of the court, in that it was a violation of section 82 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1847), which provides that, in cases where the defendant "is entitled to twenty peremptory challenges" (as was the fact in the present case) and to have a list of the jurors delivered to him, it shall be the duty of the sheriff to draw a "list of forty-eight jurors, or such larger number as the court in which such indictment shall be pending shall by special order direct." The argument in support of the contention is that, by virtue of this statutory enactment, when the court has made an order directing the sheriff to draw a list of more than 48 jurors its power is exhausted; and that the original panel cannot thereafter be added to, even if it be discovered subsequently that a larger number than that provided by the order is necessary for the protection of the rights of the defendant and of the state. We see nothing in the words of the statute to justify this contention. Its primary purpose is to protect the interests both of the defendant and of the state by providing a panel of jurors sufficient in number to afford each party the opportunity of exercising the right of challenge to its fullest extent, without being compelled to resort to talesmen by reason of the exhausting of the panel; and it should be so construed as to effectuate that purpose. This being the purpose of the enactment, we have no doubt that, when it is discovered that the number of jurors provided for by the original order is insufficient for the purpose for which they were drawn, the court has power under the act to make a subsequent order directing the adding to the number of jurors on the panel as many more as the situation of the case may justify.

(2, 3] The next assignment of error is that the court improperly permitted Charles Powell, one of the defendants named in the indictment, to be examined as a witness for the state, notwithstanding a challenge interposed on behalf of the plaintiff in error Mohr, based upon the assertion that he was incompetent because of unsound mind; and, further, that the court refused to permit Mohr to call witnesses to prove that allegation. We observe from an examination of the case that the fact is not correctly stated in the assignment of error; that is, the offer was not made to prove Powell's insanity at the time he was called to the witness stand, but during his prior confinement in the county jail, and the challenge was apparently based upon the unsound theory that the alleged insanity existing at that time necessarily continued until the calling of Powell as a witness. But, assuming that the challenge was as broad as the assignment of error suggests, we think it was properly dealt with by the trial court. When it was interposed, the court proceeded to interrogate the offered witness for the purpose of ascertaining to what extent, it at all, he was mentally unbalanced, and, as a result of that examination, determined that he was competent to testify as a witness, and refused to permit counsel for Mohr to introduce witnesses for the purpose of testifying on the question of the sanity of Powell. Although there is some contrariety of view upon the subject, we think the true rule was stated by Chief Justice Kirkpatrick, speaking for the Supreme Court, as early as the year 1819, in the case of Den v. Vancleve. He states that the trial of the question of the incompetency of a witness by reason of insanity must always be by the judges, and by inspection only; and that this inspection consists in putting interrogatories to the alleged lunatic in order to discover not only the fact but also the degree of intellectual deficiency, if it exists, and admit or reject the witness, according as it is found that he is or is not so mentally impaired as to render his statements, if examined as a witness, valueless. 5 N. J. Law, star page 653. The doctrine of this case was applied by the Supreme Court of the United States in District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27...