State v. Simmons
| Citation | 198 A. 294,120 N.J.L. 85 |
| Decision Date | 26 January 1938 |
| Docket Number | No. 14.,14. |
| Parties | STATE v. SIMMONS et al. |
| Court | United States State Supreme Court (New Jersey) |
Syllabus by the Court.
1. The general rule is that statutory provisions respecting the preparation of lists of persons liable to jury duty and the drawing of the panel are regarded as directory only, and that irregularities therein are no ground of challenge, unless they are such as plainly operate to prejudice the challenging party.
2. A declaration of opinion to disqualify a juror must be such a one as implies malice or ill will against the prisoner, thereby showing that the person challenged does not stand indifferent between the state and him. The mere expression of an opinion as to the prisoner's guilt or innocence, not arising from malice or ill will, does not disqualify the juror, and such declaration is in itself no evidence of the existence of malice or ill will.
3. Malice in the case of a challenged juror is that state of mind, favorable or unfavorable, which resists the influence of truth, and prevents a decision of the cause according to the weight of the evidence, without bias.
4. A challenge for cause based upon the formation of an academic opinion from reading newspapers, winch the juror said it would require some evidence to overcome, is properly overruled in the absence of any evidence of the existence of malice or ill will.
5. The finding of the trial judge upon the competency of a juror ought not to be set aside by a reviewing court, unless the alleged error is manifest.
6. It is not error to refuse requests to charge where the pertinent principles of law therein were correctly and fully presented in the charge as delivered.
Error to Court of Oyer and Terminer, Essex County.
Harry Simmons, alias Indian, and Albert Faria were convicted of the crime of murder in the first degree, and they bring error.
Judgment affirmed.
Joseph Kraemer and George D. McLaughlin, both of Newark, for plaintiff in error Harry Simmons. Simon L. Fisch and Ernest F. Masini, both of Newark, for plaintiff in error Albert Faria. William A. Wachenfeld, Prosecutor of the Pleas, and Joseph E. Conlon, Asst. Prosecutor, both of Newark, for the State.
The defendants below (Harry Simmons, alias Indian, and Albert Faria) were convicted of the crime of murder in the first degree (without recommendation) for the killing of Thomas Ennis, a police officer, while the defendants were perpetrating a robbery at the Hi-Hat Restaurant, in East Orange, and accordingly were sentenced to death.
The defendants did not bring up the entire record of the proceedings had upon the trial, but chose rather only to assign errors upon their bills of exceptions, and so we are here limited to an examination of alleged errors thus assigned.
The first assignment of error is that the trial judge erroneously overruled the defendants' challenge to "the panel of petit jury, and also to the special panel which is taken from the petit jury panel."
That challenge was an oral one, and in passing we call attention to the fact that such a challenge to the array should be in writing (State v. Dedge, 101 N.J.L. 131 127 A. 539), but we see fit to ignore that fact, preferring in this case to examine and consider the oral challenge.
We think it was properly overruled.
The defendants were tried by a jury drawn from a special panel of 48 names, which special panel was drawn and delivered to the defendants in accordance with pertinent statutory requirements. This special panel was drawn from the general panel which had been drawn from a list theretofore made by the commissioners of juries, "alphabetically arranged, of persons liable to jury duty, having regard to the just distribution of jury service among those persons qualified therefor in the various wards and municipalities of such county," as required by chapter 20, P.L.1913, Sp.Sess., § 5, as amended by P.L.1934, c. 111, p. 307, N.J.St. Annual 1934, § 104—53.
Now the defendants complain of the fact that the general panel was drawn from such list of 2,045 names of persons liable for jury duty prepared by the jury commissioners by taking from the voting lists and other lists of persons qualified for jury duty already indexed and listed in alphabetical order, all names under certain letters of the alphabet, in this instance the letters M, N, O, P, and Q, without including all of the thousand and more other names of qualified persons.
We perceive no error in that procedure, and certainly no injustice to the defendants. We apprehend that the reason for adopting that method was to avoid the duplication of persons within the prohibited period of one year. Certainly it appears that it was not for any invidious reason. There is no reason why a juror whose name began with a letter in the latter half of the alphabet would not be an impartial juror and as well qualified as one taken from another part of the alphabet. The defendants suggest that the procedure adopted might possibly be made prejudicial to a defendant, but they do not say—nor even suggest—that it was injurious or prejudicial to the defendants here. The fact that the commissioners by this procedure complied with the requirement of "having regard to the just distribution of jury service among those qualified therefor in the various wards and municipalities of such county," plainly appears and is not in dispute.
We therefore think there was no irregularity in the present case, but, even if there was, the general rule is that statutory provisions respecting the preparation of lists and the drawing of the panel are regarded as directory only, and that irregularities therein are no ground of challenge, unless they are such as plainly operated to prejudice the challenging party. Gardner v. State, 55 N.J.L. 17, 26 A. 30; State v. Calabrese, 107 N.J.L. 115, 151 A. 781; Thomp.Tr. § 33; Thomp. & Merr. Juries, §§ 134, 139.
The next assignment alleges that the court erred in overruling the defendants' challenge for cause as to George A. Purcell, upon the ground of bias and prejudice in that the said juror had formed an opinion as to the guilt or innocence of the defendants and therefore could not, with conscience and discretion, try the case.
This juror testified upon his voir dire, among other things, as follows:
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