State v. Rombolo

• Decision Date: 04 March 1918
• Docket Number: No. 51.,51.
• Parties: STATE v. ROMBOLO.
• Court: New Jersey Supreme Court

103 A. 203

91 N.J.Law 560

STATE

v. ROMBOLO.

No. 51.

Court of Errors and Appeals of New Jersey.

March 4, 1918.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error to Court of Oyer and Terminer, Hudson County.

Michael Rombolo was convicted of murder in the first degree, and he brings error. Affirmed.

See, also, 89 N. J. Law, 565, 99 Atl. 434.

Richard Doherty, of Jersey City, for plaintiff in error. Robert S. Hudspeth, of Jersey City, for the State.

GARRISON, J. The plaintiff in error, having been convicted of murder in the first degree, brings up with his writ of error a certification of the proceedings under the statute. The first point argued is that the accused suffered manifest wrong or injury from the denial of his motion for the withdrawal of a juror made after the close of the state's case.

The motion was as follows:

"Mr. Doherty: I make a motion for an order of mistrial, on the ground that Mr. Black, who is a juror in this trial, was also a juror in the previous trial, and of course cannot divest himself of his recollection of the evidence on the former trial. My information is that Mr. Black, a juror in this case now, was sitting in the former trial, and my motion is that a mistrial be declared on the ground that the juror cannot very well act on the same evidence differently than he did before."

The motion being denied, counsel said, "Will your honor be influenced if I tender evidence now of the fact?" to which the court replied, "No," and "sealed an exception.

Treating the inquiry made by counsel as an offer of evidence, its denial by the court established the fact that the juror Black was a juror in the former trial of the same indictment. The motion was therefore, in effect, a challenge for cause made during the progress of the trial. That it is not an abuse of discretion to deny the right to make such a challenge at such a time is too plain for discussion. No other circumstances than those stated in the motion were proved or offered to be proved.

If other pertinent circumstances were that the disqualification of the juror was not known to counsel and could not have been discovered by due diligence, there was no proof of such circumstances or of either of them. Counsel said in making his motion, "Information came to me just now that Mr. Black," and at this point he was interrupted, and did not finish the sentence or again refer to what he had in mind to say excepting as he said it in the language of the motion that has been quoted. Counsel presumably had had for at least two days the list of jurors that was served on the defendant...