State v. Schmieder

• Decision Date: 12 June 1950
• Docket Number: No. A--136,A--136
• Citation: 5 N.J. 40,74 A.2d 290
• Parties: STATE v. SCHMIEDER.
• Court: New Jersey Supreme Court

Page 40

5 N.J. 40

74 A.2d 290

STATE v. SCHMIEDER.

No. A--136.

Supreme Court of New Jersey.

Argued May 15, 1950.

Decided June 12, 1950.

Edward F. Juska, Long Branch, argued the cause for the appellant.

George A. Gray, Assistant County Prosecutor, Red Bank, argued the cause for the State (J. Victor Carton, County Prosecutor, Asbury Park, on the brief).

The opinion of the court was delivered by

OLIPHANT, J.

Defendant appeals from a conviction of murder in the first degree returned against him in the Monmouth County Court, Law Division. The verdict recommended imprisonment at hard labor for life and that sentence was imposed. R.S. 2:138--4, N.J.S.A.

As there is no contention that the verdict was against the weight of the evidence and the appeal is predicated solely on trial errors we do not deem it necessary to review the facts in detail.

Four points are made and argued as grounds for a reversal and we will deal with them seriatim.

It is first asserted the trial court erred in ruling upon the scope of the examination of a prospective juror.

A juror was called and defendant's counsel proceeded to examine him on his Voir dire. After some questioning the following colloquy took place between counsel and the Court:

'Mr. Juska: I should like to pass further questioning at this time, your honor.

'The Court: Complete your questioning, Mr. Juska; I am not going to give you two examinations unless something develops during the course of the Prosecutor's examination that gives you the right to re-examine this witness.

'Mr. Juska: It is discretionary under the new rules--that's the reason I asked.

'The Court: The reason I am exercising my discretion in the fashion that I do is because you shouldn't have two bites out of it, so to speak.

'Mr. Juska: I am only doing what the rules provide and you understand that I have to do that in a case of this kind.

'The Court: Unless something new develops during the questioning of the Prosecutor I shall consider your examination complete.

'Mr. Juska: Alright, Sir. I understand under the new rule it won't be necessary for me to except at any time during this trial because the whole record goes up. The defendant will excuse Mr. Pearlman.'

Counsel argues he was thus forced to peremptorily challenge the juror. The defense exercised all twenty of its peremptory challenges and then asked the Court for an additional one, which request was denied.

It is apparent the right to further questioning in the event something new was developed during the examination of the prospective juror by the State was reserved to the defendant. This was the orderly procedure to be pursued and it in no way 'forced' the defense to challenge when it did.

A peremptory challenge may be interposed at any time in a capital case before the jury is sworn. This is so under the common law, the rules and the cases. State v. Lyons, 70 N.J.L. 635, 58 A. 398 (E. & A. 1904); State v. Deliso, 75 N.J.L. 808, 69 A. 218 (E. & A. 1908); State v. Letter and DiCanio, 133 A. 46, 4 N.J.Misc. 395, affirmed 104 N.J.L. 188, 138 A. 923 (E. & A. 1927). Rule 2:7--2 provides that all challenges shall be tried under the supervision of the court and that a peremptory challenge shall be made before the swearing of the juror. We can perceive no error.

Defendant's second point asserts that the defendant was deprived of his rights under rule 2:3--3(a) and (b) governing the courts of this state. The argument seems to be that as the Rule was not complied with, the statement or confession of the defendant should not have been admitted in evidence.

Section (a) of the rule provides in part that 'A person making an arrest without a warrant shall take the arrested person, without unnecessary delay, before the nearest available magistrate. A complaint shall be filed forthwith and a warrant issued thereon.' Section (b) provides 'The magistrate shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination.'

The crime was committed about 9:30 P.M. on September 19, 1948 and about midnight the defendant was taken to the Asbury Park police headquarters where he was questioned. Sometime after this hour he was taken to Freehold where the questioning was continued for a short while and about 4:00 A.M. he was lodged in the Monmouth County jail. On the following day, September 20th, after lunch, the questioning was resumed and it ended in the defendant's arraignment between 3:00 and 3:30 P.M. on the same day in the county jail. In the afternoon of September 21st defendant's statement was taken by the Assistant Prosecutor, stenographically, in question and answer form and it was later transcribed and signed by him. At this time the defendant was fully advised of his rights.

It is undisputed that violence was not exhibited against the defendant nor were any threats of violence made. No such claim is made by the defendant. His complaint is that he was tired when he read the statement and before signing it, that he had been questioned for seven hours and had nothing to eat. He made no statement at any time of any threats or promises having been made or of any physical, mental or moral force having been used upon him. At the trial this question was asked of the defendant: 'Nobody harmed you in any way, that is, any of the police officers?' The answer was: 'No, they were all right with me.' At the trial he testified that he had never told them anything other than what he was then testifying to. The only difference between what was said in the statement and his testimony at trial is that in the former, with respect to the gun used in the killing he said: 'I am pretty sure it was my gun' while his testimony was 'It looks like my gun but I'm not sure.'

We do not condone the failure of the police and prosecuting authorities to adhere to the provisions of the rules and we emphatically disapprove of the arraignment of the defendant in the county jail. Rule 2:5--1 requires the arraignment to be conducted in open court. By this time the Prosecutors of the Pleas, their assistants, their detectives and the police should be sufficiently cognizant of the rules to observe them. But as we have said on several occasions violations of the provisions of procedural rules, standing alone, will not vitiate a statement of a defendant voluntarily made, which, without question, this was. State v. Pierce, 4 N.J. 252, 72 A.2d 305 (1950); State v. Bunk, et als., 4 N.J. 461, 73 A.2d 249 (1950).

There is a further and persuasive reason why there was no error in admitting Schmieder's statement into evidence. When it was offered in evidence counsel for the defendant said 'If I could take time to read it I wouldn't object to the offer at all, but under the circumstances if Your Honor will give me two or three minutes I will read it.' The Court then said 'The question at this time is whether or not the statement is a voluntary statement' and counsel replied 'No objection.' The Prosecutor then offered the statement and it was marked in evidence.

Counsel cannot speculate on the effect, legal or factual, of proferred testimony. He cannot fail to make an objection to its admission, lull the Court into a sense of security concerning its reception into evidence and then when the result is adverse claim error.

The third point briefed and...