State v. Shupe
| Decision Date | 05 November 1914 |
| Parties | STATE v. SHUPE. |
| Court | New Jersey Supreme Court |
Error to Court of Quarter Sessions, Union County.
William F. Shupe was convicted of assault with intent to commit rape, and he brings error. Affirmed.
Argued February term, 1914, before GUMMERE, C. J., and PARKER and KALISCH, JJ.
William D. Wolfskeil, of Elizabeth, for plaintiff in error.
Alfred A. Stein, of Elizabeth, Prosecutor of the Pleas, for the State.
The defendant was convicted in the Union oyer of an assault with intent to commit a rape upon one Mabel Jones while she was taking a pleasure ride with him in his automobile.
The first attack upon the legality of the conviction is that there was harmful error in the refusal of the trial court to sustain a challenge to the array of jurors. The challenge was rested on two counts: (1) That upon the day before the trial the prosecutor of the pleas, in explaining the case to the court upon an application by the defendant to postpone the trial, indulged in remarks before the general panel which were prejudicial to the defendant; and (2) that the jury which tried the case was drawn from a panel which had been selected and summoned under a statute which had been repealed prior to the trial.
What was said by the prosecutor was a mere recital of the history of the case up to the date of his remarks. It is not suggested that anything which he stated was untrue, and there was nothing in them which can be said to have unquestionably prejudiced the jury against the defendant. In fact, counsel does not attempt to show us just how his client was injuriously affected by these remarks, but contents himself with the assertion that they were prejudicial. If it be assumed that prejudicial statements made by the prosecutor of the pleas in the presence of the general panel constitute a ground for challenge to the array, the trial court was justified in overruling it.
As to the contention that the jury was drawn under a nonexisting statute: If it be conceded that the challenge was proferly submitted, under the rule laid down in State v. Barker, 68 N. J. Law, 19, 52 Atl. 284, it is without merit. The repealing act (P. L. 1913 [Sp. Sess.] p. 803) was approved May 27, 1913, and was known as the "Fielder Act." Although it became a vital statute upon its approval, it did not become oferative until the next ensuing term. The general panel of jurors had been drawn on May 19th, under the then existing statute, and that pan...
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