75 N.J.L. 808 | N.J. | 1908
The opinion of the court was delivered by
The plaintiff in error having been convicted of murder in the first degree and sentenced to death in the Court of Oyer and Terminer of Middlesex county brings this writ of error to reverse the said judgment.
Observing the order adopted in the brief of counsel the first ground for reversal to be considered is that: “The court erred in permitting the state to challenge a juror peremptorily after the administration of the oath had been begun.” The incident of the trial to which this contention is deemed applicable was as follows: A juror of the general panel having been called and a challenge to the favor made by the state the juror was sworn on voir dire and examined by the prosecutor and by counsel for the prisoner. When counsel had finished their examinations the succeeding occurrences as narrated in the bill of exceptions were as follows:
“Mr. Strong — Does the court sustain the challenge?
“The Court — No; I overrule the state’s challenge.
“The Clerk — Does the defence challenge?
“(The clerk began to administer the oath to the juror.)
“Mr. Berdine — The state peremptorily challenges.
“Mr. Strong — I submit it is too late. After the oath has been started and after the state has challenged to the favor and has not challenged further and the defence has been called upon to challenge, it is too late, it seems to me.
“The Court' — I think the state ought to interpose a peremptory challenge before the administration of the oath has begun, for the purpose of securing orderly procedure. In this case, however, the clerk had barely started to administer the oath when the challenge was interposed. I will sustain the state’s challenge.”
The contention on behalf of the plaintiff in error is that the trial court in sustaining this challenge exceeded its lawful authority to the prejudice of the prisoner. The legal proposition upon which this contention rests is “that a peremptory challenge interposed after the clerk had commenced to administer the oath comes too late,” in support of which proposition Leary v. North Jersey Street Railway Co., 40 Vroom 67, and State v. Lyons, 41 Id. 635, are cited. The first of these cases was a Supreme Court decision in a civil cause and involved the consideration of a statute that on its face applied to civil causes alone, and also the construction of a statute that on its face was applicable solely to challenges for cause. Obviously the question of the right of peremptory challenge in a criminal case was neither in fact nor on principle before the Supreme Court or involved in its decision. The later case of State v. Lyons was a criminal case in this court upon the question of peremptory challenge, and would therefore be directly in point if the plaintiff in error in the present case were complaining, as the plaintiff in error in that case was, of the denial of his right of peremptory challenge, i. e., the curtailing of his right to reject a juror. The argument presented to us, in so far as it seeks support from State v. Lyons, loses sight of the fundamental principle that the right of challenge is a right to reject and not a right to select.
The essence of the right of challenge is that it shall afford an opportunity to every person to say that some particular jurors shall not try him, but it is no part of this or of any other system of trial known to our law (unless it be that of arbitration) that a person shall say by what particular jurors he or his cause shall be tried. A right that is in this sense unknown to the law is non-existent as a legal right, and the denial of a right that is legally non-existent cannot inflict a legal injury. In the recent case of State v. Moore in this court this doctrine was applied to the allowance of a peremptory challenge to a juror by one of two defendants jointly indicted against the protest of the other. The decision was that even if the challenge was not one that the trial court was bound to allow, the non-challenging defendant was not, in a legal sense, injured thereby, the effect being merely to reduce the number of the general panel from which the trial panel was selected. In his opinion Mr. Justice Reed adverts to the circumstance that it did not appear in the record that the protesting defendant had exhausted his challenges, or that the selection of a jury from the general panel was impaired. The same may be said in the present case, although in view of the statutory provision for summoning talesmen the latter circumstance may be without significance. The matter decided was that the allowance of a peremptory challenge was not a ground for reversal upon error so long as neither the right of the plaintiff in error to have a trial jury selected from the jurors legally summoned nor Ms right to reject such jurors was impaired.
It should furthermore be pointed out that the case of State v. Lyons is not only not an authority for the position taken by the counsel who cites it, but that, on the contrary, it is a distinct authority against such position and in favor of the judicial action of which complaint is made. State v. Lyons, as has been said, directly involved the right of the prisoner to reject by peremptory challenge a given juror. The precise question presented was, When did such right
This quotation from the opinion in State v. Lyons makes it perfectly clear that what was decided in that case was that when the court directed the juror to be sworn, the right of challenging was at an end. The decision therefore places the
Whether the discretionary action of the trial court is in any event concluded by the commencement of the adminis
Our conclusion is that in the respect indicated there was no error in the empaneling of the trial jury by whom the plaintiff in error was convicted.
The next assignment of error to be considered is that “The court permitted one Cansarano to testify against the objection of the defendant that on the night of the shooting of Tenace certain persons broke in the door and entered the shanty in which the said Cansarano had then been sleeping, saying, ‘Light the electric or we will kill you all/ and that the defendant was then near the. door and thereupon entered the said shanty;” with which may be considered the next assignment, viz., that “the court having erroneously admitted the foregoing evidence did not strike out the same or clearly and explicitly instruct the jury to disregard said evidence, nor otherwise deal with the matter so as to remove from the mind of the jury the impression produced thereby.”
To a proper appreciation of this branch of the case it is necessary to understand that Deliso, the defendant; together with Tenace (the man who was killed) and Cansarano, the witness under examination, were members of a large gang of laborers, mostly, if not wholly, Italians, employed at the Port Reading coal wharves, and occupying shanties each of which
This testimony, which was objected to when offered, was admitted upon the undertaking of the prosecutor to supply evidence showing that the -assault upon Cansarano and that upon Tenace had a common motive, viz., that each of the men were from a certain district in Italy toward the natives of which the defendant and his associates had enmity. The prosecutor was unable to supply the expected proof, the facts not being as he had understood them; thereupon the trial judge, in a colloquy with counsel over the propriety of striking out this testimony, said that certain parts of it must go out and that he thought he should have to say to the jury that all the testimony of Cansarano they were to regard was that which tended to show that the defendant was present at some time that evening in the neighborhood. When, however, the judge came to charge the jury, he gave them no instruction upon this head. Hence the counsel for plaintiff in error contends with much force that there had been no adequate or effective removal from the minds of the jury of the effect of the testimony which, in counsel’s opinion, was illicit when offered.
It is not necessary, however, to pursue this question, for the reason that we have reached the conclusion that the testimony was admissible.
Ho practical difficulty arises so long as the two sorts of testimony do not overlap in the sense that testimony admissible under the one rule and for one object is inadmissible for the other purpose. When, however, such a situation is presented, what is called for is not a hard and fast rule upon the subject, but the exercise of sound judgment. So that when, as in the present case, a transaction offered in evidence is a distinct offence from one point of view, and at the same time is, from another point of view, the climax of a series of acts that culminated in the crime for which the defendant is on trial, the question of the rejection of the testimony in toto, or of its absolute or qualified admission, is for the trial judge to determine, subject to review in case of legal injury of the defendant. In the present instance wc see no such injury, and hence find no ground for reversal either in the original admission of the testimony of Oansarano or in the refusal of the court to strike it out, if in fact there was such a refusal. If, instead of moving to strike out the testimony, the court had, upon request, refused to charge the jury as to the aspects of the case with respect to which the proof was relevant, a different question would be presented.
The complaint of counsel that he was debarred from addressing the jury upon testimony that he himself had asked to have stricken out shows, at most, a predicament of his own making. The assignment under consideration directs our attention to no reversible error.
The remaining matters discussed in the brief, with a single exception, to be hereafter considered, relate to the execution of the judgment before us, rather than to the judgment itself. With respect to the matters thus mooted, it is sufficient to say that they either come within the rule laid down in State v. Bindernagle, 32 Vroom 259, or else are specifically dealt with in the opinion delivered in this court by Mr. Justice Pitney in the recent case of State v. Tomassi.
The exception referred to is the assignment'that ascribes error to an instruction contained in the charge touching murder in the first degree. The elements of that grade of murder had been stated generally in an earlier part of the charge, and later in his charge the trial judge, returning to the subject and making a specific application of his more general statement, said: “Nor are you likely to have much trouble in deciding whether there was premeditation and deliberation. The attack was made at or after midnight, when, so far as appears, all the Tenaces were in bed, and it was made apparently without provocation.” Then follow's the instruction upon which error, is assigned: “The testimony of the boy Domeinio and the brother Joseph is uncontradicted that there ■was a threat to kill; that Luigi (the murdered man) w'as dragged from under the cot and pleaded for mercy and kissed the hand of his assailant and was shot. If you believe that, the guilty person was guilty of murder in the first degree.”
This instruction is categorical. It selects from the mass of the testimony five concrete circumstances with respect to which the jury is in effect told that if they believe that the defendant killed Tenace under the circumstances thus detailed he was guilty of murder in the first degree. The importance of this instruction can hardly be overestimated. It w'as literally upon the vital point of the ease. In considering the legal effect of this instruction it may, I think, be assumed that the enumerated circumstances demonstrate so conclusively the existence of a specific intent to take life that the
In his opinion in that case Chief Justice Gummere, commenting upon the fact that this court, in State v. Donnelly, 2 Dutcher 601, had not accepted in its entirety the definition of murder in the first degree given by Chief Justice Green in the Supreme Court (State v. Donnelly, Id. 463), said, as to the part of the definition so rejected: “It is to be observed that the further declaration that ‘wherever there is in committing a homicide a specific intention to take life, there is a willful, deliberate and premeditated killing, and the offence is murder in the first degree/ was not included in what was accepted by this court as an accurate statement of the law, and, presumably, this omission occurred advisedly, for the construction thus put upon the words ‘deliberate’ and ‘premeditated’ nullifies each of them, and makes every homicide murder in the first degree when the killing is willful. This is manifest, for the word ‘willful/ although broader in its signification than ‘intentional/ embraces the latter in its meaning.”
If therefore, in the light of this discriminating criticism, it be conceded that the instruction under review completely satisfies the word “willful” in the statutory definition of murder in the first degree, it still fails to take into account or to give any effect to the equally important words “deliberate” and “premeditated.” Eor it cannot have escaped observation that while the statute, in its enumeration of the three mental states essential to murder in the first degree,
Concluding, as we do, that the instruction in question was erroneous, we have considered whether it could be viewed as a mere comment upon the testimony or be treated as an ' expression of opinion only upon a matter of fact. It was, however, neither of these. It was not in form or in substance a mere opinion; on the eontraiy, it was a categorical declaration that the enumerated facts were equivalent to murder in the first degree. Such judicial statement left no question to the jury saving their belief that such facts had been proved with respect to the defendant. Neither was it a mere comment upon the evidence, but, on the contrary, was a definite announcement of the effect to be given to a congeries of circumstances segregated from the rest of the testimony. So far from informing the jury that it was its duty to consider and weigh all other pertinent proof bearing upon the question of the degree of murder, the direct tendency of the instruction was to relieve the jury of any duty in that regard other than that of deciding whether the enumerated facts had been ' proved and whether the defendant was the guilty man. That there was other testimony bearing upon this important issue cannot be questioned. For instance, upon the question of the force to be given to the threats mentioned in the instruction, it was pertinent for the jury to recall and consider that similar threats to take the lives of the inmates of the Can
By the foregoing considerations we are constrained to the conclusion that this erroneous instruction was a legal injury to the plaintiff in error that can be set right only by a new trial.
To this end the judgment of the Middlesex Oyer is reversed.
For affirmance — Reed, Gray, Dill, J.J. 3.
For reversal — The Chancellor, Chief Justice, Garrison, Trenohard, Bergen, Bogert, Vredenburgi-i, Vroom, Green, J.J. 9.