62 N.J.L. 666 | N.J. | 1899
Lead Opinion
The opinion of the court was delivered by
The plaintiff in error was indicted for the murder of Charles Gebhardt, a police officer of the city of Hoboken. The indictment was found in the Court of Oyer and Terminer of the county of Hudson. It contained two counts — first, the statutory form prescribed by section 45 of the act regulating proceedings in criminal cases. Rev., p. 275; Pamph. L. 1898, p. 866, § 36. The second count is in the common law form, charging the killing to have been done “ willfully, unlawfully, feloniously, deliberately, premeditatedly and with malice aforethought.” The contention is that in order to charge the act of killing for which the accused was put on trial the allegation should have been oí the killing of a police officer. This contention is without substance. An indictment in the statutory language that the
The accused was tried by a struck jury and was convicted of murder of the first degree. The statute under which the jury in this case was struck confers on the Supreme Court, Court of Oyer and Terminer and Court of Quarter Sessions, or on auy judge thereof, on motion on behalf of the state or the defendant in any indictment, power to order a jury to be struck for the trial thereof, and provides that upon making such order the jury shall be struck, served and returned in the same manner as in the case of struck juries ordered in the trial of civil cases except as by the act provided. Pamph. L. 1898, § 75. The order for a struck jury in this instance was made by the court on the application of the prosecutor.
The method in which the jury is struck in civil cases is substantially the same as the method of striking juries in England. The party applying for , such struck jury is required to give six days’ previous notice to the adverse party or his attorney, and to the judge, sheriff or other officer, of the time and place of striking such jury, at which time and place the judge shall in the presence of the parties or their agents or attorneys, or such of them as shall attend for that purpose, select and transcribe the names of forty-eight persons so qualified, with their places of abode, “ as he shall think most impartial and indifferent between the parties, and best qualified as to talents, knowledge, integrity, firmness and independence of sentiment, to try the said cause; ” and thereupon the party applying for such jury, his agent or attorney, shall first strike out one of the said names, and then the adverse party, his agent or attorney, shall strike out another, and so on alternately, until each shall have stricken out twelve;
By 22 Hen. VIII., c. 14, persons indicted for petit treason, murder or felony were admitted to challenge peremptorily twenty of the jurors returned. This statute was in force in England at the time of the Revolution. By an act of the legislature passed in 1795, it was provided that every person indicted for treason, murder or other crimes punishable with death, or for misprision of treason, manslaughter, sodomy, rape, arson, burglary, robbery or forgery, was admitted to challenge peremptorily twenty of the jurors; and it was further provided that neither the attorney-general nor any person prosecuting for or in behalf of the state should be admitted
Peremptory challenges allowed to the accused on the trial of criminal cases are now regulated by sections 80 to 83 inclusive of the act of 1898. Every person indicted for treason, murder, &c., is admitted to challenge peremptorily twenty of the jurors summoned, and the state is entitled to challenge peremptorily twelve; and on the trial of an indictment where twenty peremptory challenges are not allowed, the defendant
The record shows that application was made to the court by the prosecutor of the pleas for a struck jury, and that the court granted the motion and fixed September 12th as the time for striking, and directed notice to be given for that day. On that day the counsel of the prisoner appeared and objected to the striking of the jury, on the ground that the statute under which the jury was to be struck was unconstitutional and void. The court overruled the objection and exception was taken.
By the constitution of 1776 it was provided “ that the inestimable right of trial by jury shall remain confirmed as part of the law of this state without repeal forever.” Art. 22. The provisions on this subject in the constitution of 1844 are as follows (Art. 1, § 7): “ The right of a trial by jury shall remain inviolate, but the legislature may authorize the trial of civil suits when the matter in dispute does not exceed $50, by a jury of six men.” Section 8 provides that “ in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defence.”
Two grounds are alleged in the brief of the counsel of plaintiff in error for the contention that the act of 1898 is unconstitutional. First. Because the crime with which he was charged was a felony at common law, and a struck jury could not be had at common law in cases of felony, and hence under our constitution the legislation for struck juries in'
Trial by jury as the means of determining questions of fact is of great antiquity. Its origin, notwithstanding the investigations to which the institution has been subjected, still remains in obscurity. In the “Mirror of Justice” satisfactory evidence is furnished that in criminal cases in the time of King Alfred trial by jury was trial by a jury of twelve men, who were sworn and whose verdict was required to be by the concurrence of all. It is said that King Alfred caused forty-four justices in one year to be punished for false judgment. In the enumeration given it is stated that he punished Cad wine “because that he judged Hackwy to death without the consent of the jurors, whereas he stood upon the jury of twelve men and because three would have saved him against nine. Cadwine removed the three and put others upon the jury, upon which Hackwy put not himself.” “He punished Markes because he judged During to death by twelve men who were not sworn.” “ He punished Freburne because he judged Harpin to die, whereas the jury were in doubt as to their verdict, for in doubtful cases one ought rather to save than to condemn.” Mirr. J., c. 5, ¶ 108, (3), (7), (15). This treatise, Mr. Finlason says, though published in the time of Edward I., bears on its face traces of an origin in an earlier work of the age of Alfred, and that there is no doubt it embodies the Dom Boc of Alfred. 1 Reeve Hist. 24 n., 37 n. “The most ancient traces of trial by jury, quali,fied by an oath and consisting of twelve men,” says Selden, “ are to be found in the law of the king Ethelred, which provided that in every hundred let there be a.court, then let twelve freemen of mature age, together with their foreman, swear upon the holy relics that they will condemn no innocent and absolve no guilty person.” Seld. Dis. (Bac. ed.), c. 6, p. 37.
Mr. Justice Wilson, of the Supreme Court of the United States, in his lectures on the law, referring to the evidence on this subject, says that “to King Alfred the world is indebted
The qualifications of jurors and the means by which they were to be selected and empaneled constituted no part of the essential features of trial by jury at common law. Thus in the earlier periods jurors found their verdicts upon their own knowledge of the matters of fact, and consequently they were frequently called twelve witnesses and their verdicts the testimony of twelve credible men; and they were selected from the villa or place where the offence was committed or the dispute arose; and it was a good cause of challenge to the array that there were not upon the panel returned by the sheriff a sufficient number of hundredors. Arundel’s Case, 6 Co. 14. This practice had fallen into disuse, without being changed by statute, until 24 Geo. II., c. 18, by which jurors were required to come from the body of the county. By the common law jurors were required to be freeholders whose possessions in the whole amounted yearly to above the sum of five hundred
The above in brief is a statement of the condition of the English law so far as is pertinent to the present subject at the time of the declaration of independence. It will be observed from the course of legislation in England prior to that time that the subject of qualifications of jurors, as well as the right of peremptory challenges, were matters of legislation, which was exercised in one instance at least to reduce the number of such.challenges previously allowed to an accused, and in another instance to deprive the accused of peremptory challenges. Although trial by jury was guaranteed by Magna Charta and secured to Englishmen as an inalienable right, the mode in which jurors were selected, their qualification and extent of
In this country, where the constitutions provide that the right of trial by jury shall remain confirmed as part of the law of the land, or the right of trial by jury shall remain inviolate, the words “ trial by jury ” import a trial by a jury of twelve men, impartially selected, who must unanimously concur in the verdict. Consequently under such constitutional provisions an act of the legislature which provided for a jury in criminal cases of less than twelve, or a verdict by the concurrence of less than that number, would be unconstitutional. Thompson v. Utah, 170 U. S. 343, 349; Work v. State of Ohio, 1 Lead. Crim. Cas. 482.
The provision in our constitution (paragraph 8), that the accused should have a right to a speedy and public trial by an impartial jury, secured to the accused a right to a trial by an impartial jury by an express constitutional provision. The means by which an impartial jury should be obtained are not defined. In neither of the constitutional provisions on this subject is there any requirement with respect to challenges, or to the qualifications of jurors, or the mode in which the jury shall be selected. These subjects Avere left in the discretion of the legislature, with no restriction or limitation, except that the accused should have the right to be tried by an impartial jury. The provisions on this subject in Magna Charta, as well as those in our constitution, apply to criminal cases of all grades, misdemeanors as well as common law felonies. If twenty peremptory challenges are essential to secure an impartial jury, then there has not been in England, nor is there in this state, any constitutional mode of trying criminal cases of a grade less than those enumerated in the statute of Henry VIII., and in the act of 1795. It seems to me that it is inconceivable that a jury should be an impartial jury for the trial of an indictment, say, for having burglars’
In the treatises on this subject, as well as in the decisions of the courts, there is a consensus of opinion in defining right of trial by jury under constitutional provisions such as ours as it is here defined with respect to the legislative power over trial by jury. An act diminishing the number of a jury or altering any of its essential features, as for instance dispensing with unanimity or depriving a party of challenges for cause— the purpose of which is to exclude jurors who are not impartial — would be clearly unconstitutional, but it is otherwise of a law merely providing the mode of securing a trial by jury. “Although by the common law, at the adoption of the constitution, a person charged with a capital offence could challenge twenty jurors peremptorily, yet it has been held that a law reducing the number of such challenges to twelve was not unconstitutional or an infringement of the sacred right of trial by jury.” 1 Lead. Cr. Cas. 495, 496. “The legislature has the power to confer the right to challenge peremptorily upon the parties litigant in civil actions and proceedings, and the state and the accused in criminal cases, and by reason of the power so vested, and so long as the right to
The constitution of New York preserves the trial by jury in all cases in which it had been theretofore used. .In Walters v. People, which was an indictment for murder, the question was whether an act which conferred on the people the right to challenge five of the persons drawn as jurors peremptorily was constitutional, there being no right on the part of the prosecution to challenge peremptorily when the first constitution of the state was adopted. The court sustained the constitutionality of the act, and in doing so used this language : “This certainly is no limitation of or restriction upon the legislative power except as to the right guaranteed, viz., a jury trial in all cases in which it had been used before the adoption of that instrument. I am not aware of any other constitutional provision that may be supposed to have the remotest bearing upon the question. Trial by jury cannot be dispensed with in criminal cases, but it is obviously within the scope of legislation to regulate such trial. I entertain no doubt that it is entirely competent for the legislature to declare that either the people or the accused may have their challenges without assigning cause and to limit the number of them. The subject of peremptory challenges has always been under legislative control, and it is only within a eomr paratively recent period that the right has been extended even to the accused in a minor class of criminal offences. Even if it were a right given by common law it could be restrained, limited or withheld altogether at the legislative will.” 32 N. Y. 147, 159.
In Stokes v. People, which was a writ of error on a conviction for murder, the question-was as follows: At common law a juror having formed or expressed an opinion conclusively proved a want of impartiality, and excluded the juror without inquiry as to whether this would influence his
The courts of Massachusetts and Connecticut, as well as courts of other of our sister states, have held that the legislature
In Proff. Jury Trial, § 106, the doctrine is stated in these words: “ The legislature may limit the number of peremptory challenges, even in capital cases, without infringing on the constitutional right; for this fight is to have twelve free and lawful men, who are impartial between either party, who will by a unanimous verdict find the truth of the issue; and any legislation, therefore, which merely points out the mode of arriving at this object, but does not rob it of any of its essential ingredients, cannot be considered an infringement of the right.” In Thomp. & Merr. Juries, § 163, it is said: “The subject of peremptory challenge has always been under legislative control, ánd it has been held by a long and unbroken line of decisions that the legislature has power at all times to increase or diminish the number of peremptory challenges to be allowed to the state or defendant in criminal cases.” The subject is discussed in the notes to Work v. Ohio, 1 Lead. Cr. Cas. 482, 492, 496, and the power to increase or
In Hayes v. Missouri, Mr. Justice Field, in discussing the office of peremptory challenges, used this language: “ The constitution of Missouri, and indeed every state of the Union, guarantees to all persons accused of a capital offence or of a felony of lower grade the right to a trial by an impartial jury selected from the county or city where the offence, is alleged to have been committed, and_ this implies that the jurors shall be free from all bias for or against the accused. In providing such a body of jurors the state affords the surest means of protecting the accused against an unjust conviction and at the same time of enforcing the laws against offenders meriting punishment. To secure .such a body numerous legislative directions are necessary, prescribing the class from which the jurors are to be taken, whether from voters, taxpayers and freeholders or from the mass of the population indiscriminately; the number to be summoned from whom the trial jurors are to be selected; the manner in which their selection is to be made; the objections that may be offered to those returned, and how such objections shall be presented, considered and disposed of; the oath to be administered to those selected; the custody in which they shall be kept during the progress of the trial; the form and presentation of their verdict, and many other particulars. All these, it may be said in ¿eneral, are matters of legislative discretion. But to prescribe whatever will tend to secure the impartiality of jurors in criminal cases is not only within the competency of the legislature but is among its highest duties. It is to be remembered that such impartiality requires not only freedom from any bias against the accused but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held. * * * In this country the power of the legislature of a state to prescribe the number of peremptory challenges is limited only by the necessity of having an impartial jury.” 120 U. S. 68.
The cases cited affirm the constitutionality of statutes con
I find on examination in several of our sister states, whose jurisprudence is founded upon the common law, and with constitutional provisions on the subject of trial by jury in criminal cases similar to ours, the number of peremptory challenges in the trial of capital cases has been reduced below the number that existed in England at the time of the separation. In California, in capital cases or where the punishment is imprisonment for life, the defendant has ten, the state five. In Colorado, the people and the accused are entitled each to fifteen in capital cases. In Florida, in capital cases, the state has six; in cases not capital, the state and the defendant have four each. In Kansas, in capital cases or where the punishment is imprisonment for life, the defendant has twelve, the state six. In Maine, in capital cases, the defendant may challenge ten while the jury is being formed and one more after it is complete. In Mississippi, in capital cases, the defendant has twelve, the state six. In Nebraska, in capital cases, the defendant has sixteen, the state three. In Nevada, in capital cases, the defendant has ten, the state five. In Oregon, in capital cases or where the punishment is imprisonment for
The course of legislation in England is in affirmance of the right of parliament to reduce the number of peremptory challenges allowed to an accused as not being an invasion of the right of trial by jury secured by Magna Charta. Before Magna Charta any man accused of treason or felony was allowed to challenge for cause without limit, and also to challenge five-and-thirty of the jurors without assigning cause. Fortesc., c. 27, p. 12; 2 Trial Per Pais 600. Such was the conditiou of the law of England at the time of Magna Charta, and continued to be until 22 Hen. VIII., c. 14, which enacted
By the common law, from time immemorial, before Magna Charta and for upwards of three centuries thereafter, thirty-five peremptory challenges were allowed to the accused in treason or felony. The statutes of Henry VIII. wholly deprived persons accused of treason of peremptory challenges and reduced the number of peremptory challenges allowed on the trial of indictments for felony from thirty-five to twenty. Magna Charta is styled “ the charter of the liberties of Englishmen ” and occupies in the constitutional law of England the place of our written constitutions. Sir Edward Coke says: “This statute of Magna Charta has been confirmed about thirty times and commanded to be put in execution. By the statute of 25 Edw. I., c. 2, judgments given against any points of the charters of Magna Charta or Charta de Forestó are adjudged void, and by the statute of 42 Edw. III., c. 1, if any statute be made against either of these charters it shall be void.” 1 Co. Litt. 81 a; 3 Co. Inst. 110. There is not in any decision or treatise on the law of England any scruple expressed with respect to the validity of those statutes which reduced the number of peremptory challenges below those which were previously allowed at common law or that such legislation trenched upon the rights and liberties secured by Magna Charta. From Henry VIII. until the Revolution the principle was recognized as part of the common law of England that trial by jury consisted in a trial by a jury of twelve men, who
With full knowledge of the course of legislation in England, and also of the control of parliament over the subject of peremptory challenges, it was declared in our first constitution that the right of trial by jury should remain confirmed as part of the law of this colony without repeal forever. A precedent may be found in this state illustrative of the legislative power over peremptory challenges. By the common law of England at the time of the adoption of our first constitution the accused on the trial of an indictment for treason was entitled to thirty-five peremptory challenges. Such became the law of this state and continued to be until the act of 1795, which restricted the right of peremptory challenge by an accused on the trial of an indictment for treason to the number of twenty. By the constitution of 1844 it was declared that the right of trial by jury should remain inviolate, and a clause was added that in all criminal prosecutions the accused should have a right to a speedy and public trial by an impartial jury. In State v. Fox, Chief Justice Green, referring to the clause just quoted, said: “This clause confers upon defendants in criminal cases no new right. It invests with the constitutional sanction what was previously a common law right. Every criminal is entitled at common law to a trial by an impartial jury. The question still remains, what constitutes impartiality, or, rather, what is the test or evidence of that bias or partiality which disqualifies the juror? This must be settled by common law principles. The question has undergone such repeated and elaborate discussion that no new light can be hoped for. A further discussion would be misplaced. It is proposed simply to advert to some of the leading cases in the books and state briefly the grounds on which the decision must rest.” • 1 Dutcher 589. The Chief Justice then proceeded to discuss
Struck juries, under the name of special juries, were resorted to in the English courts at an early period for the purpose of obtaining jurors in the trial of civil cases. In King v. Edmunds, which was an indictment for conspiracy, tried before a special jury, Chief Justice Abbott said: “It cannot be, or at least has not hitherto been, ascertained at which time the practice of appointing special juries for the trials at Nisi Prius first began. It probably arose out of the practice of appointing juries for trials at the bar of the courts of Westminster, and was introduced for the better administration of justice and for securing the nomination of jurors duly qualified in all respects for their important office.” 4 Barn. & Ald. 476. By our statute the judge is required to select the names of such persons qualified as jurors “as he shall think most impartial and indifferent between the parties, and best qualified as to talents, knowledge, integrity, firmness and independence of sentiment, to try the said cause.” The striking of the jury is upon notice to the accused or his counsel; it takes place in the presence of the sheriff and of the prosecutor and of the accused and his counsel, if they desire to be present. From the ninety-six names selected, the accused or his counsel is permitted to strike twenty-four. The forty-eight names that remain after the prosecutor and the accused have completed the striking, are returned as the panel from which the jury of twelve men is -to be selected. The list from which
The power of the legislature is put at issue by this exception. Conceding to that department of the government its legislative functions, which, when within constitutional limitations and restrictions, are beyond the control of the judiciary, the courts cannot interfere with its discretion on considerations of policy or abstract justice. A clear case of the infringement or invasion of some constitutional right must be disclosed to justify the intervention of the courts to nullify an act of the legislature. The only restriction on the power to legislate on this subject springs from the duty to secure an impartial jury, and it cannot be affirmed that the legislature has exceeded constitutional limitations in adopting trial by a struck jury in cases of this character — a mode of trial in force
The statement in the brief of counsel that this mode of trial is at the option of the prosecutor, is incorrect. . Either the accused or the prosecutor may apply for such a jury, but neither can obtain it unless in the judgment of the court the case is one that is proper to be tried by a struck jnry. The same discretion is conferred upon the court in ordering struck juries in civil cases.' In New York an act was recently passed providing for special juries by a proceeding analogous to the method of obtaining and selecting struck juries in this state. That act gave to the court, on the application of either the district attorney or of the defendant, authority to grant a trial by a special jury in its discretion. On an appeal which brought up a conviction for murder, it was insisted by the defendant that this act created two classes of jurors for the trial of criminal cases, and discriminated unequally, and was therefore in violation of the constitution. The Court of Appeals, in a recent case, affirmed the constitutionality of the act, and held that it did not violate the constitutional guarantee of due process of law. People v. Dunn, 52 N. E. Rep. 572.
The objection to the mode of trial adopted in this case is without substance, unless words are interpolated in the constitutional provision making peremptory challenges to the number of twenty in this class of prosecutions a constituent part of the constitution ; and for that mode of -dealing with the constitution there is no sanction.
The next class of exceptions relate to the organization of the trial jury.
That a venire was issued and returned appears from the colloquy between counsel, the clerk and the court. It is not printed in the case. It is stated that eleven of the jurors were returned not found. It also appears in the same manner that physicians’ certificates were presented to the court that two of the jurors were not able to attend; and that there were three absentees who were not excused. On this condition of the panel the defendant’s counsel moved to quash the' panel and that a Venire be issued to summon a common jury to try the case. This motion was denied and exception was taken. Section 19 of the Jury act provides that where a rule for a struck jury is entered it shall remain in force until the cause is tried, and no common jury shall be summoned therein unless the said rule shall be first vacated by the court, except as provided in the statute. Rev., p. 527, ¶ 13. The exception is that where the defendant has a rule for a struck jury and shall not procure the jury to be struck and the panel duly certified to be delivered to the plaintiff or his attorney twelve days before the day appointed for trial, the plaintiff may issue his venire for a common jury; and if the defendant shall have a rule for a trial by'proviso, and the plaintiff a rule for a struck jury, then if the plaintiff shall not procure the jury to be struck and the panel thereof to be delivered to the defendánt as aforesaid the defendant may issue his venire for a common jury. It is not within the power of the sheriff in summoning the jury to deprive the parties of the mode of trial prescribed by the statute, nor is it necessary that the whole number of jurors specified in the panel should be present when the case is called for trial. Patterson v. State, 19 Vroom 381; Smith v. Smith, 23 Id. 207 ; King v. Hunt, 4 B. & Ald. 430; King v. Edmonds, Id. 471. No application was made to.postpone the trial of the case until two of the jurors had been called, accepted and sworn. A postponement at that stage of the proceedings was impracticable.
The exceptions to the several rulings of the court in empaneling the jury are not sustained.
The next exception is to the admission in evidence of a statement made by the prisoner immediately after his arrest.
After the killing of the deceased the prisoner was arrested by Officer Myers. He was searched, and on his person were found a revolver and a black bag containing articles which are described by the police detective as follows : “ This is a key-opener or key-turner; I have seen them on prisoners that have been arrested; it is called a key-turner; this other instrument will turn a lock without a key in it; this other one will open the latch in windows; this other is three screwdrivers in one; this other is a jimmy; it will open bureau drawers or a door; this is a bunch of skeleton keys for opening any door; this other is a bunch of common keys.” There were nineteen keys, thirteen of which were skeleton keys and six ordinary keys. The officer testified that all the articles except the screw-driver he had seen many times and had found them on burglars and sneak-thieves. After the prisoner was searched and had been examined by the doctor, then, in the presence of Captains Fanning and Hayes, two captains of the police in Hoboken, in the office of the chief of police, the prisoner made a statement. Hayes testified: “I first introduced Captain Fanning to him ; I said, ‘This is Captain Fanning and I am Captain Hayes, at the same time acting chief of police; have you any objection to making a
The following is the statement of the prisoner: “James K. Brown; thirty-four years; born in Jersey City; number of street I will not tell; I live in Erie street, Jersey City; a carpenter by trade; at present out of work; I am married; I have three children.
“Q. Who did you work for last?
“A. I won’t state; I came here to-day to look for work the burglars’ tools I was going to throw in the river; as to killing the officer, I am very sorry; I had no intent to do so; I only tried to escape on account of having the burglars’ tools; the officer came to me on the corner [Twelfth and Bloomfield]; he said, ‘What are you doing here?’ I answered, ‘I expect to find a friend;’ ‘Who is this with you?’ ‘A friend of mine;’ the reason I auswered this way was to get him to walk a block or so to allay his suspicion; I then attempted to run away from him; he arrested me, knocked me down and punched me; I tried to get up by placing my hand on his face; he bit my finger; I got up, but he still held to my finger, and my greatest effort could not release it; his hands were then free; he either hit me with the butt of his pistol or stick, which staggered me; I then pulled my hand from his mouth and dodged to one side and ran; he was directly behind me.
“Q. Then you are trying to make us believe that you killed him in self-defence?
“A. I do not; I wanted to escape only; I could not get away; I looked back and saw him with what I supposed was his revolver; I drew my pistol and said to him, ‘Co ’way from me;’ he still followed me; I thought he was going to
The prisoner was a witness in his own behalf, and it was brought out on cross-examination that he had been a prisoner in the state prison at Sing Sing for two years, from July, 1895, to July, 1897. He declined to answer the question whether he had been in any other prison; he declined to answer the inquiry whether he had been convicted of the crime of burglary in the third degree, in the General Court of Sessions of New York, on the 20th of June, 1879; and to the inquiry where he had been convicted of burglary of the third degree, in the city of New York, September 17th, 1891, his answer was, “Not in the year 1891; I w7as convicted, but what date I don’t know.” To the question whether he was convicted of the crime of grand larceny in the second degree, in the Court of Quarter Sessions, in June, 1895, he answered “ Yes.” This cross-examination was proper, at least for the purpose of showing the character of the prisoner as a witness. Gen. Stat., p. 1399, § 9. It was competent also with respect to the right of the deceased to arrest him.
The remaining exceptions were directed to the charge, of the court.
The deceased was appointed a police officer of the city of Hoboken, on the 18th of May, 1891. The transaction which resulted in his death occurred in the afternoon of the 29th of July last (1898), about half-past four. The deceased was on duty at that time in citizen’s dress, detailed on detective work. The prisoner, in his testimony, said that he did not know that the deceased was an officer. The deceased and James Buchanan and Alonzo W. Letts were standing on the north side of Twelfth street, between Bloomfield and Garden, about fifty feet west of Bloomfield street. These witnesses testified that they saw the prisoner on the north side on the corner, standing on Bloomfield street, about five feet from the crosswalk, looking up and down the street. Letts said the deceased was talking to him, and the prisoner turned and went up
It is also apparent from the prisoner’s statement at the police office that the deceased in fact had arrested him, and that the shooting by the prisoner was for the purpose of effecting an escape. At common law a peace officer has a right to arrest .without warrant one whom he suspects to be guilty of felony, although it afterwards appears that no felony was committed, provided he has reasonable cause to suspect that the person arrested has committed a felony. There is this distinction between a private individual and a constable: in order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony was actually committed; whereas a constable having reasonable ground to suspect that a felony has been committed is authorized to detain the party suspected until inquiry can be made by the proper authorities. Reuck v. McGregor, 3 Vroom 70, 74; Beckwith v. Philby et al., 6 Barn. & C. 635 ; Clark Cr. Pro. § 12; 1 Lead. Cr. Cas. 197, 202. The distinction between felonies and misdemeanors is not observed in our criminal code. Statutory offences if designated at all are called misdemeanors or high misdemeanors. Jackson v. State, 20 Vroom 255. The grade of the offence in our criminal code is determined by the character and degree of the punishment pre
By statute it is made a high misdemeanor, punishable by imprisonment in the state prison for a term not exceeding seven years, if any person shall by day or by night willfully or maliciously break or enter into any dwelling-house, or enter by day or night without breaking any dwelling-house, &c., with intent to steal. Pamph. L. 1898, p. 830, §§ 131, 132, 133. By another section an attempt to commit any of the offences mentioned in the act, or any offence of an indictable nature at common law, though such offence was not actually committed, is made a misdemeanor punishable by imprisonment in the state prison at hard labor for a term not exceeding three years, &c. Pamph. L. 1898, p. 854, § 216. By another section it is made a high misdemeanor punishable by imprisonment in the state prison for a term not exceeding seven years, for a person to have in his possession any tool or implement adapted or designed for cutting through, forcing or breaking open any building, &c., knowing the same to be adapted or designed as aforesaid, with intent to use or employ or allow the same to be used or employed for that purpose. Pamph. L. 1898, p. 830, § 134.
A person engaged in the commission of the crimes referred to in the sections of the Crimes act above mentioned would, under the rules of the common law, be liable to arrest by an officer without process, and a person having in his possession the implements found in the possession of the accused, with the intent to break into any building, &c., would be liable to arrest by an officer without process. The prisoner testified that he had no intent to break into the house; that he entered the vestibule to escape, because he had in his possession the burglars’ tools that he had brought over to Hoboken — not for any criminal purpose, but to get rid of them. But the accused in the police court was found in the possession of the tools of a burglar or sneak-thief; his conduct in going into the flat was suspicious, and the officer, if he had no knowledge of the antecedents of the accused, had no knowledge of his
By section 2 of the act concerning disorderly persons, any person having upon him any pick-lock, key, crow, jack, bitt or other implement, with intent to break into any building, * * * or who shall be found in or near any dwelling-house, &c., with intent to steal any goods and chattels, shall be deemed and adjudged to be a disorderly person, and by section 36 it is made the duty of every constable or other police officer, and lawful for any person, to apprehend without warrant or process any disorderly person and take him before any magistrate of the county where he shall be apprehended. Pamph. L. 1898, pp. 942, 953. The learned judge, in his charge, excluded from the consideration of the jury these provisions of the Disorderly act and presented the right of a peace officer to arrest without process under the provisions of the Crimes act exclusively. The right of a peace officer to arrest without process under the Disorderly act is of great importance in the maintenance of public peace, especially in the large cities. In Mayor, &c., of Newark v. Murphy, 11 Vroom 145, 150, Mr. Justice Reed, speaking of the authority to arrest summarily, says: “In this state, by the act concerning disorderly persons, it has been extended to a class of cases which would seem to include almost every instance where the police regulation of any municipality would require speedy treatment.” The right of arrest under that statute is referred to that it may not be inferred that, in the judgment of this court, it is to be excluded in the consideration of cases of this kind.
In Mackalley’s case, which was an indictment for murder in killing a police officer, in making an arrest, “ it was resolved that if any magistrate or minister of justice, in execu
The instruction of the learned judge was that the police officer, having the same powers as a constable or sheriff in this respect under the common law, is justified in making arrest without warrant provided he acts in good faith upon such facts and circumstances as amount to a reasonable and proper ground for suspicion. “ If he has reasonable cause
The judge instructed the jury that if the act of killing was not excusable or justifiable on the ground of self-defence .and was not reduced to manslaughter, then it would be murder of the first or second degree; the act of killing being established, the presumption was that it was murder of the second
The contention at the trial was that the killing of the officer was justified on the ground of self-defence. The evidence showed that the prisoner and the deceased came down the steps together and proceeded into Twelfth street on the south side, where a struggle ensued between them; that after they had broken away from each other, or the prisoner had broken away from the officer, the prisoner, in backing off or getting
The statement of the prisoner at the police court is important on this subject. He says that when the officer came to him and said to him, “What are you doing?” he answered, “I expect to find a friend;” the officer asked, “Who is this with you?” that the prisoner answered, “A friend of mine; the reason I answered him this way was to get him to walk a block or so to allay his suspicion ; I then attempted to run away from him; he arrested me.”
“Q. Then you are trying to make us believe that you killed him in self-defence ? ”
“A. I do not; I wanted to escape only; I could not get away; I looked back and saw him with what I supposed was his revolver; I drew my pistol and said to him, ‘Go ’way from me;’ he still followed me; I thought he was going to shoot; I pointed my revolver with the intention of frightening him away; I then fired at him three times; each shot took an effect.”
The instructions of the trial court on this subject were: “ Taking life in the course of the necessary defence of one’s person is a legal defence upon an indictment of this kind, but the law, from the highest considerations of public policy, circumscribes the right of one person to take the life of another
The errors assigned on that part of the charge are — first, with respect to the instruction that the burden of proof of self-defence is on the prisoner; that he must show to the satisfaction of the jury a situation and circumstances under which the right of self-defence could be lawfully exercised, and before his defence is complete those facts and circumstances must appear to bring the act done by the prisoner within the prescribed limits; second, the instruction that “to kill to escape arrest is not self-defence;” and third, that the accused could not make his judgment of the necessity of slaying the deceased in order to defend himself a justification of his act— that it was the province of the jury to determine that question.
“In every charge of murder, the fact of killing being first proven, all the circumstances of action, necessity or infirmity are to be satisfactorily 'proven by the prisoner, unless they arise
There is a broad distinction between the obligation to make proof of facts and circumstances upon which a particular defence rests and the effect of such evidence upon the ultimate issue of the trial. In a civil suit for an assault and battery a justification of son assault, &c., must be pleaded, and at the trial the burden is on the defendant to prove a justification by way of self-defence commensurate with his assault upon the plaintiff. The feature that distinguishes a criminal prosecution from a civil suit arising out of the same transaction is that in the latter the burden of proving a justification is throughout upon the defendant, but in the criminal prosecution, after the facts are proved which give occasion for self-defence, the accused is entitled to the benefit of a reasonable doubt with respect to his guilt upon the whole case. In such a prosecution, if no facts are shown which would in law give occasion for self-defence, a justification on that ground will disappear from the case; but if such facts are shown to the satisfaction of the jury, then the jury make their deductions and inferences therefrom, and the issue of the guilt or inno
The case cited as the leading case against this view is Stokes v. People, 53 N. Y. 164. I do not understand the decision of that case to controvert the rule of the common law with respect to the presumption arising from the act of killing. The justification in that case was by way of self-defence, and the charge of the trial court, which was held to be erroneous, was that “the fact of killing being conceded and the law implying motive from the circumstances of the case, the prosecutor’s case is fully and entirely made out, and therefore you can have no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to satisfy you that it ivas justified under the circumstances of the case.” The trial judge in his instructions also charged that “ordinarily, natu
The learned judge who delivered the opinion of the Court of Appeals of New York, in commenting on this instruction, said (at^p. 178) that “the benefit of the doubt to be given to the prisoner should not have been restricted to their finding of the evidence evenly balanced, so that they did not know where the truth lay; on the contrary, the instruction would have been not to convict of that crime unless convinced by all the evidence in the case that he was guilty, and that if a careful examination of all the evidence left in their minds reasonable doubt of his guilt, they should give the prisoner the benefit of an acquittal. This instruction was warranted by the common law of England.” The learned judge adds: “ But the question in this case is not what was the rule of the common law as to the implication of malice from the act, whether such rule is deduced from authority or principle and legal analogy. The question arises upon the statute of the state by which homicide is made justifiable or excusable, murder in the first or second degree, or manslaughter in one of four degrees, determinable by the intention and circumstances of its perpetration. Under the statute it is obvious that mere proof that one has been deprived of life by the act of another utterly fails to show the class of the homicide under the statute.” The court did not overrule or even cite the earlier case (People v. Schryver, 42 N. Y. 1), in which it was held on an indictment for manslaughter, where it was claimed that the killing was done in self-defence, that on such a claim of justification the accused must take upon himself the burden of satisfying the jury by a preponderance of evidence, and
It may be inferred from the fact that in the Stokes case People v. Schryver was not overruled, as well as from the language of the judge in pronouncing the judgment, that that decision was placed upon the statute and not upon the common law. Other authorities in elucidation of the principle that the burden is on the accused of proving the facts and circumstances upon which justification or mitigation rests will be cited in considering another branch of this case.
At the close of the evidence on the part of the state, and upon the proof adduced at- that stage, there was no ground on which justification by way of self-defence could be rested. The defence, if permissible at all, arose from the 'testimony of the defendant himself. The charge of the judge, that the burden was on the accused to prove the facts and circumstances necessary for such a defence,’ was in accordance Moth the doctrines of the common law, which at an early period of our judicial history were adopted, and have been recognized as the law without dissent, it is believed, down to the present time.
The instructions with respect to the circumstances under which an accused is justified in resorting to self-defence with the weapon that was used were correct. “ The right of self-defence has always been regarded as founded on necessity and is in no case permitted to extend beyond the actual continuance of that necessity, by which alone it is warranted.” 1 East P. C. 271, 278. “Before a person can avail himself of the defence that he used a weapon in defence of his life he must satisfy the jury that that defence was necessary to protect his own life or to protect himself from such serious bodily harm as would give him a reasonable apprehension that his life was in immediate danger.” 3 Russ. 208. And again, “It should further be observed, as the excuse of self-defence is founded on necessity, it can in no case extend beyond the
Justification for taking life by the use of a deadly weapon results from the situation of the accused at the time the fatal wound was given. Whether his situation was such as to warrant resort to such means to protect himself from a danger actual or apprehended on reasonable grounds, and whether, before the fatal wound was given, the accused had done everything exacted by the law to avoid taking life, involve the determination of questions of fact. The accused cannot make his own judgment of the necessity of slaying the deceased his justification. The judge properly instructed the jury that whether the necessity for taking life existed must be determined from the situation of the accused at the time and that it was the province of the jury to determine that question.
Whether the arrest of the prisoner by the deceased was lawful, was correctly submitted to the jury. If, in the finding of the jury, the arrest was lawful, it would be superfluous to discuss the question whether it would be justifiable in the accused to kill the officer in order to effect an escape.
The instructions of the trial judge with respect to manslaughter are also under exception on which errors have been assigned. The trial judge instructed the jury that the killing being established the presumption was that it was murder of the second degree, and that “ if the defendant desired to reduce it to a lower degree of homicide he must establish that by the evidence in your minds to your satisfaction.”
Citation has already been made of some of the common ' law authorities with respect to the presumption from the act of killing and the burden of proof on the questions of justification and mitigation. A reference to a few of the leading
The general doctrine of the law as stated in the latest edition of Russell is that “ whenever death ensues from the
In Commonwealth v. York, 9 Metc. 93, a case which has been considered as the leading case in this country, it was held that “on a trial for murder, if the killing be proved to have been done by a wound willfully inflicted with a deadly weapon upon a vital part with great violence, and nothing further is shown, the presumption of law is that it was malicious and an act of murder. The proof of excuse or extenuation lies on the defendant, which may appear either from evidence adduced by the prosecution or from evidence offered by the defendant.” In that case it was held that it was not only incumbent on the defendant to make proof of the matter of excuse or extenuation, but that the proof must be by a preponderance of evidence sufficient to satisfy the jury of the fact, and that the accused was not entitled to a verdict though there should be a reasonable doubt of the fact of extenuation. Commonwealth v. York was followed in Commonwealth v. Webster, 5 Cush. 295. In both of these cases the opinion was delivered by Chief Justice Shaw. In a later case (Commonwealth v. Hawkins, 3 Gray 463), which was an indictment for murder'tried before the same Chief Justice and Justices Metcalf and Bigelow, the contention was that the offence was mitigated to manslaughter. The evidence was that the parties were under the influence of liquor, and after
With respect to the conditions under which a homicide may be mitigated to manslaughter, on the contention that the act of killing was done in the heat of blood or in a sudden transport of passion, the learned judge instructed the jury as follows: “The object of the law is to have passion controlled and subdued and not permit it to become the excuse or palliation of crime. To mitigate the offence to manslaughter the facts must show that the act was done in the excitement of passion; it must appear that the killing resulted from passion or heat of blood produced by a reasonable provocation. It is
As the case stood when the state rested, the proof was of an arrest by a police officer on reasonable grounds and the shooting by the accused in the effort to escape. On his examination as a witness the prisoner testified that his object in going into the vestibule was an innocent object, and that he did not know that the deceased was an officer. The charge of the trial judge on this subject was as follows: “The prisonei contends here that the arrest wras unlawful, and if unkuvful it was the reasonable provocation of hot blood or sudden passion in the prisoner resisting the arrest; he having no. notice of the official character of the deceased, and having no notice of it, he killed the deceased, and therefore his act of killing would be only manslaughter. If the arrest was unlawful in the sense I have defined — that is, that no crime had been committed by him, or that the officer had no reasonable cause to suspect him of being guilty of a crime — then it was unlawful; and if it was unlawful in this sense — that is, an arrest where no crime had been committed, or that the officer had no reasonable cause for it — and the defendant had no notice
These instructions are quite as favorable to the prisoner as he had any right to require. Nor has the prisoner any cause of complaint that he was not accorded by the trial judge the benefit of a reasonable doubt to the full extent. Near the commencement of the charge the learned judge used this language: “In this case, once for all, you can remember it and apply’the principle as you go along in the investigation of the case, that the prisoner at the bar, when put upon his trial under this indictment, is presumed to be innocent, and his guilt, whatever phase it may take in your minds, whatever your conclusions from the facts may be, must be established in your mind and in your judgment beyond reasonable doubt, before you can convict. If in this case there should arise any reasonable doubt as to the guilt or innocence of the defendant generally upon this indictment and under this evidence, your duty would be to acquit him of any offence. If in considering this case and applying the principles of law which will be given to you by the court, you should be clear and find beyond reasonable doubt that guilt has been established, but you should be in that state of mind which is called reasonable doubt as to whether his guilt was that of manslaughter or of murder of either of the degrees, the benefit of that reasonable doubt would go to the prisoner, and you would find him guilty of the lesser degree of homicide; that is, manslaughter. If it
The charge of the court must be considered with reference to the case as it was made. The fair _ import of the judge’s instruction taken as a whole is that the obligation rests primarily on the accused of proving such facts and circumstances as in law may justify the homicide or mitigate the offence to manslaughter, submitting to the jury the issue of the guilt or innocence of the accused upon all the evidence in the case, and according to the accused the benefit of a reasonable doubt, which the learned judge declared “always goes to the defendant and always is applied in his favor.” The charge in these respects is sustained by the entire body of
The other exceptions and assignments of error have been examined. Finding no error upon the record, the judgment should be-affirmed.
Dissenting Opinion
(dissenting). The plaintiff in error having been convicted of murder in the first degree, contends that his constitutional rights were infringed by trying him before a struck jury — that is, a jury drawn from among the persons named on a panel selected by a judge, from, which panel the state and the prisoner had struck an equal number of names.
The constitutional prescriptions are these: “ The right of trial by jury shall remain inviolate,” and “in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury.”
I have been unable to find any reason for thinking that the procedure mentioned runs counter to these constitutional injunctions.
But according to our statute, in eases tried before struck juries, accused persons are entitled to only five peremptory challenges, while at the time of the adoption of our constitution persons accused of certain high crimes, among them murder, were entitled to twenty peremptory challenges. This feature of the statute I deem unconstitutional.
The right of the accused to challenge peremptorily, on being confronted with the proposed juror immediately before the trial, I regard as a very important means of securing to him what the constitution guarantees — an impartial jury. The accused may know of a bias, the grounds of which he cannot prove or dare not disclose, or he may create a bias by an unsuccessful attempt to support a challenge for cause, and in any of these circumstances his sole resort is to a peremptory challenge. The evident utility and -importance of this right, in order to insure the attainment of the constitutional aim— trial by an impartial jury — -justify the conclusion that-, so far as the right existed when the constitution was framed, it is
I am therefore of opinion that a person on trial for any of these high crimes is entitled to twenty peremptory challenges, to be presented when the accused and the proposed juror are brought face to face immediately before the trial.
The present record, however, does not show that this right was denied to the plaintiff in error, for his specific objection was only to a struck jury, and every peremptory challenge interposed by him was allowed. On this ground a reversal of the judgment could scarcely be demanded.
But I think there were, in the charge of the judge to the jury, errors which require reversal.
The undisputed facts established by the evidence were that the prisoner shot and killed Charles Gebhardt, in th'e city of Hoboken ; that Gebhardt was a policeman of the city, and at the time of the homicide was arresting the prisoner withou a warrant. The matters in dispute on the evidence were whether the prisoner had notice that Gebhardt, then in the dress of a private citizen, was a policeman; whether there existed any legal cause for the prisoner’s arrest, and whether, when the prisoner fired the fatal shots, Gebhardt had a pistol aimed at the prisonér, as if about to shoot him.
.Under these circumstances the judge instructed the jury as follows: “If you find that the act of killing Gebhardt was the act of the prisoner at the bar (and of that there is no dispute here; that fact is conceded by the evidence and by the counsel in the trial of the case), the presumption arises, notwithstanding the person slain was an officer of the law and notwithstanding this killing grew out of an attempt to make an arrest — the killing having been established as that of the defendant — that the degree of the offence is murder of the second degree only. That presumption of law existing, the burden is then on the prisoner to mitigate that degree of guilt from murder of the second degree to manslaughter, that
The charge further declared as follows: “ The burden of proof of self-defence is upon the prisoner. He must show to the satisfaction of the jury, a situation and circumstances under which the right may be lawfully exercised, and before his defeuce is complete those facts and circumstances must appear to bring the act done by the prisoner within the prescribed limits.”
These instructions, I think, clearly deprived the prisoner of the benefit of the principle that an accused person shall not be convicted of any offence unless his guilt thereof be proved beyond reasonable doubt. For, if the evidence raised in the minds of the jurors reasonable doubt whether the facts existed on which the homicide would be manslaughter only, but did not establish such facts in the minds of the jurors to their satisfaction, then as between murder and manslaughter the jury must, according to these instructions, convict the prisoner of murder; and if the evidence raised in their minds reasonable doubt whether the situation and circumstances were such as made the homicide excusable because committed in self-defence, but did not show such situation and circumstances to the satisfaction of the jury, then as between a conviction of murder and an acquittal on the ground of self-defence, the jury must, according to these instructions, convict. Yet in either of these conditions of proof, the jury would be convicting the prisoner of murder when the whole evidence created in their minds reasonable doubt whether lie was guilty of murder. Such a conviction would be in violation of the fundamental principle of our criminal jurisprudence.
I think it plain that in this case there were, beside the killing, two principal matters, one or the other of which
One of these matters was that Gebhardt’s attempt to arrest the prisoner was legal. If that was shown beyond reasonable doubt, then the prisoner was proved to be guilty of murder. But certainly the legality of the arrest could not be assumed, and if it was not proved the arrest should, have been treated as any other unlawful interference with personal liberty, as an act which may be lawfully resisted.
The other matter would present itself for consideration, if the evidence failed to prove beyond reasonable doubt the legality of the arrest, and was whether, in resisting the arrest, the prisoner resorted to malicious, wanton or unreasonable violence. Eor, if the' prisoner, in resisting the illegal arrest, was not shown beyond reasonable doubt to have acted maliciously or wantonly or unreasonably, then the homicide was not proved to have been criminal at all; and if he was not thus shown to have acted maliciously or wantonly, then the homicide was not proved to have been murder.
Under the circumstances admitted at this trial, the mere killing did not, as matter of law, establish any criminality in the prisoner, and therefore did not cast upon him the burden of establishing any fact to the satisfaction of the jury, in order to justify his acquittal. On the contrary, he was entitled to an acquittal, notwithstanding the killing, unless, upon the circumstances touching the legality of the arrest, or the maliciousness, wantonness or unreasonableness of the prisoner’s conduct, the jury came to an undoubting conclusion adverse to his claims. The direction to the jury that they should convict the prisoner of murder unless his claims on these points were substantiated to their satisfaction, was in my opinion erroneous.
Although in another part of the charge the jury were told in general terms to give the prisoner the benefit of reasonable doubt, yet in the explicit directions above quoted this general instruction was practically withdrawn as to all contested
So intelligible and so definite was the course which tiie learned judge thus marked out for the jury, that I am unable to assure myself that the verdict of the jury does not rest upon this view of their duty, and therefore I conclude that the judgment should be reversed.
In the determination of the cause the following questions were submitted to the court:
1. Is a statute which provides for the trial of criminal offences by a struck instead of a common jury, an infringement upon the constitutional provision “that trial by jury shall remain inviolate?”
Yes — None.
No — The Chancellor, Chief Justice, Depue, Van Syckel, Dixon, Garrison, Gummere, Ludlow, Collins, Nixon, Hendrickson, Adams. 12.
2. Is a provision in such statute, ordering peremptory challenges below the number allowed prior to the adoption of Reconstitution, in violation of the right of a person indicted for a criminal offence, guaranteed by the constitution ?
Yes — The Chief Justice, Dixon, Hendrickson. 3.
No — The Chancellor, Depue, Van Syckel, Garrison, Gummere, Ludlow, Collins, Nixon, Adams. 9.
For affirmance — The Chancellor, Chief Justice, Depue, Van S yokel, Garrison, Gummere, Ludlow, Collins, Nixon, Adams. 10.
For reversal — Dixon, Hendrickson. 2.
