39 A.2d 481 | N.J. | 1944
Lead Opinion
Robert Deegan, plaintiff in error, was convicted of murder in the first degree without recommendation of life imprisonment and was sentenced to death. (R.S. *262 2:138-4.) He brings this writ of error to reverse the said judgment. Reliance is placed on strict error set forth in the several assignments and, additionally, the entire record is brought up for our consideration asserting that the plaintiff in error suffered manifest harm and injury on the proceedings had at the trial. (R.S. 2:195-16.) He was tried on an indictment in which he was jointly charged with Martin Hoffman, Rugh Oberempt and Carolyn Twing with the murder of Ethel Hermann. There was a severance as to the two women, and Deegan and Hoffman were tried together by a struck jury. They were represented by different counsel and interposed defenses on different grounds. Both were found guilty. The jury recommended life imprisonment for Hoffman but not, as stated, for Deegan.
The first ground argued for reversal is that the trial court committed reversible error in overruling a peremptory challenge interposed by the plaintiff in error to Anna P. Siter, a member of the struck jury panel. This ruling was based on the court's conclusion that the pertinent statute, R.S. 2:92-8, pre-empted one defendant, when two or more defendants are jointly tried, from exercising the right of peremptory challenge unless all defendants join in such challenge. It appears that Hoffman was satisfied to have this juror sit and so did not join with Deegan in the challenge. The statute supra is as follows: "Upon the trial of any indictment for which a struck or foreign jury shall be summoned and returned, five peremptory challenges each shall be allowed to the defendant and to the state." It is clear that a defendant is given the right by this statute to have five peremptory challenges. May he be deprived of this right where he is jointly indicted and tried with others? We think not. Whether he be tried separately or jointly is not within his control, and we think it makes no difference with respect to his right to the number of peremptory challenges to which he is entitled. His challenge of this juror placed Deegan in the position of having made known his unwillingness to have her serve. The seating of such juror under these circumstances would, we conclude, work out to the detriment of the objecting defendant so as to amount to manifest harm and injury. We are concerned *263 with the construction which the learned trial judge applied to this statute, and we are unable to construe the statute, supra, to require that a peremptory challenge to a juror must be made in concert when two or more defendants are on trial together. The statutory language does not indicate that the legislature intended to make a distinction in the number of peremptory challenges allowed where defendants are tried jointly as against a situation where a separate trial for each defendant is had. In the absence of language indicating such intention we are brought to the conclusion that no such distinction was intended.
It is argued by the state that the trial court correctly interpreted the statute in ruling that the two defendants were restricted to five peremptory challenges concurred in jointly.State v. Moore,
"The Crimes Act of 1790, chapter
Another ground argued for reversal is that the trial court erred in charging the jury that in considering whether to recommend imprisonment for life, if a verdict of first degree murder was arrived at, it need not confine itself to the evidence but had a right to consider anything it thought proper in arriving at its conclusion. This is what the trial court said in this regard:
"Now, while you are here, I wish to modify something I think I said to you before, in discussing a verdict of murder in the first degree coupled with a recommendation for imprisonment for life. If that should be your verdict, I think I said before that in making such a recommendation you should confine yourself to the evidence in the case. If I said that, I am in error; and I withdraw that. You have a right to consider anything that you think is proper in arriving at your recommendation, if you make such a recommendation. * * * you may consider all of the things that you ought to consider in arriving at this recommendation."
The statute which first authorized the jury to recommend life imprisonment where a conviction for murder in the first degree was rendered was enacted in 1916. (Pamph. L., p. 576.) This statute was construed by this court in State v. Martin,
Our conclusion is that the rulings referred to constitute reversible error. The judgment will therefore be reversed, and a discussion of further grounds for reversal becomes unnecessary.
Concurrence Opinion
I concur in the conclusion that the judgment below should be reversed for the reason secondly stated in the majority opinion. I consider, however, that there was not error in the overruling of the attempted peremptory challenge.
There is no constitutional provision which requires the granting of peremptory challenges to defendants in criminal cases. Where that is so the constitutional right of defendants to trial by an impartial jury is not infringed by the statutory requirement that in cases where there are several defendants they shall be treated as a single party for the purpose of peremptory challenges. Stilson v. United States,
"Upon the trial of any indictment where twenty peremptory challenges are not allowed, the defendant or defendants and the attorney-general or the prosecutor of the pleas shall each be entitled to challenge peremptorily ten of the general panel of jurors summoned and returned by the sheriff or other officer; and upon the trial of any indictment in cases where the defendant is entitled to twenty peremptory challenges, the attorney-general or prosecutor of the pleas shall be entitled to challenge peremptorily, and without assigning any cause, twelve of the jurors returned for the trial of such indictment, and upon the trial of any indictment for which a struck or foreign jury shall be summoned and returned, *267 five peremptory challenges each shall be allowed to the defendant and to the state; challenges in all cases may be made at any time before the jury is sworn; all challenges to the array or to individual jurors, for any cause whatever, shall be triable by the court."
The interpretation of that section given by Mr. Justice Reed in writing the opinion for this court in State v. Moore,
"This construction of the statute is put upon the legislative language, namely, `The defendant or defendants and the attorney-general or the prosecutor of the pleas shall each be entitled to challenge peremptorily ten of the general panel.'Pamph. L. 1898, p. 896, § 81. When two or more are on trial jointly, it would seem that they must join in their challenges. The statute obviously does not mean that one shall be limited to five challenges and the other to five challenges, or that the first defendant who challenges shall defeat the right of his joint defendant to challenge. That defendants shall have the right to challenge ten means that they collectively must challenge or assent to the challenge, and that each shall have a right to say whether a challenge shall be interposed."
That was said of a jury drawn from the general panel. In the instant case there was a struck jury, but the reasoning of the opinion would carry through to that situation. By chapter 220,Pamph. L. 1930, section 81 was changed in certain other respects, but the provision regarding challenges under struck juries was preserved except that the word "defendant" was made to read "defendant or defendants." The 1937 Revision, 2:92-8, reverted to the reading of the 1898 statute, supra, namely:
"Upon the trial of any indictment for which a struck or foreign jury shall be summoned and returned, five peremptory challenges each shall be allowed to the defendant and to the state."
A further provision in the Revision, 1:1-2, provides that "whenever, in describing or referring to any person, party, * * * any word importing the singular number * * * is used, the same shall be understood to include and to apply *268
to several persons or parties as well as to one person or party * * *." I take it that the word "each" is used collectively, in the one instance referring to "the defendant or defendants" and in the other instance to the "state." If it had been the purpose of the legislature to alter the meaning thus given by judicial construction, the change would have been more clearly stated. When a statutory provision is re-enacted in the same language, the later act is presumed to have adopted the earlier one with the meaning which has already been ascribed to it by judicial construction. Cook v. Bennett Gravel Co.,
Moreover, it is a fair presumption that a rearrangement of a statute, done under the authority of chapter 73, Pamph. L. 1925, to "revise, simplify, arrange and consolidate all the public acts" and authenticated (R.S. 1937, p. XIII) by the commission, along with all the extant general public acts, as "revised, simplified, arranged and consolidated" pursuant to that statute, and enacted without change by the legislature as an integral part of the revision, was, unless there is convincing reason to the contrary, intended to retain the legal effect of the old law.
I am authorized to say that the Chancellor, Justices Parker, Donges and Heher, and Judge Wells concur herein. Judge Dill concurs in the remarks concerning the peremptory challenge.
For affirmance — DILL, J. 1.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 15. *269