State v. Rombolo
| Citation | 89 N.J.Law 565,99 A. 434 |
| Parties | STATE v. ROMBOLO. |
| Decision Date | 20 November 1916 |
| Court | United States State Supreme Court (New Jersey) |
Error to Court of Oyer and Terminer, Hudson County.
Michael Rombolo was convicted of murder, and he brings error. Judgment reversed.
Richard Doherty, of Jersey City, for plaintiff in error. Robert S. Hudspeth, Prosecutor of the Pleas of Jersey City, for the State.
The defendant below, having been convicted of the crime of murder in the first degree, now seeks to have that conviction set aside for alleged errors occurring during the course of the trial.
The first reason for reversal urged before us is that the jury which tried him was impaneled in violation of the statutory provisions regulating the matter, and in disregard of his objection. The undisputed facts relating to the drawing of the jury are as follows: A special panel of 48 jurors had been drawn from the general panel, pursuant to the requirement of section 82 of the Criminal Procedure Act (Comp. Stat. p. 1847), for the purpose of trying the indictment against the defendant. When the case was moved, the assistant to the sheriff, who was charged with the duty of drawing the jury, placed in the box the names of only 31 members of the special panel, and proceeded to draw the 12 names from this number, leaving the names of the other 17 out of the box, because—as he happened to know—they were then engaged in jury service in other of the county courts. He did this upon his own responsibility, and without notifying either the court or counsel of the situation, until all of the 31 names had been drawn from the box. At that time only 7 jurors had been selected for service. The court thereupon adjourned until 2 o'clock in the afternoon, and upon reconvening was informed by the sheriff's assistant that 9 of the 17 jurors whose names had been left out of the box were then present. Upon this information being received, the court directed the names of these 9 to be placed in the box and the drawing of the jury to be proceeded with. Three more jurors were obtained from this new drawing, and then—this second division of the special panel having also been exhausted— the court directed the names of the remaining members of the general panel to be placed in the box, and the last 2 jurors were selected therefrom. The defendant's peremptory challenges were all used before the jury box was filled.
The method provided by the Legislature for drawing a jury, either from a general or special panel, is to write or print the name of each member thereof on a separate slip of paper, place all the slips in the box, shake the box so as to intermix the papers, and then draw such papers from the box one at a time until twelve persons whose names are written thereon (and who have not been excused, or successfully challenged) shall appear. Comp. Stat. p. 2975, § 27.
When, in drawing a jury from a special panel in a criminal case, the panel is exhausted, from any cause, before a jury for the trial of the indictment is obtained, the law requires that talesmen to be taken from the general panel, and that the empty seats in the jury box be filled from them by a drawing in the manner already indicated. Comp. Stat. p. 1847, § 83.
Strictly speaking, the names of all members of the panel who have not previously been excused from service should be placed in the sheriff's box, even those who are not present in court when the jury is ordered to be drawn, for some or all of the absentees may appear before their names come out of the box. It may be conceded that a failure in this regard is a harmless irregularity, provided that the names of all the members of the panel, who answer the roll call, or come into court while the jury is being selected, are put in the box before the drawing of the jury is begun; but we do not doubt the right of a defendant to insist upon this proviso. The statute gives it to him by necessary implication, when it declares that, if the special panel "shall be exhausted from any cause" before a jury shall be obtained, talesmen shall be taken from the general panel. The importance to the defendant of having the names of all the persons from which the jury will be selected placed together in the box is not merely imaginary. The value of his right to challenge, as was said by the Supreme Court in State v. Lapp, 84 N. J. Law, 21, 86 Atl. 62, depends to a considerable degree upon the order in which the names are drawn from the box, and may be radically affected by placing therein less than two-thirds of the whole number of names on the panel, and then, after exhausting those names, place the remainder (or a portion thereof) of the names upon the panel in the box, and fill up the jury from this second installment.
The method adopted in the drawing of the jury in the present case was a clear violation of the statute, and worked to the manifest injury of the defendant. The conviction under review must therefore be reversed for this reason.
As the case must go back for a new trial, we deem it advisable to refer to certain other causes of reversal which were argued before us.
...
To continue reading
Request your trial
-
State v. White
...into the Subject of Capital Punishment, which concluded with a recommendation along the line of the 1916 act. In State v. Rombolo, 89 N.J.L. 565, 99 A. 434 (E. & A.1916), the jury was informed, in response to its inquiry, that a defendant convicted with a recommendation could be pardoned. T......
-
State v. O'Leary
...for robbery. The trial court, recognizing the hearsay character of such caption and its highly prejudicial effect, State v. Romobolo, 89 N.J.L. 565, 99 A. 434 (E. & A.1916), allowed the admission of the photograph as evidence only after the legend had been This constitutes the gist of the c......
-
State v. Carroll
...the trial court in responding to the request made by the jury as to the functions of the Board of Pardons are without merit. State v. Rombolo, (N. J.) 99 A. 434; 32-201, R. S. 1931; State v. Carrigan, 108 A. 315; State v. Schilling, 112 A. 400; State v. Mosley, 131 A. 292; State v. Barth, 1......
-
State v. Todd
...no reason why it should not be instructed in the first instance as to the existence of the parole and pardoning power. State v. Rombolo, 89 N.J.L. 565, 99 A. 434, 437; State v. Carrigan, 93 N.J.L. 268, 108 A. Comments upon the alternative punishments prescribed by law for first-degree murde......