STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN JOSEPH KOCIOLEK, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued November 26, 1956—Decided February 11, 1957.
23 N.J. 400
Mr. David R. Brone, First Assistant Prosecutor, argued the cause for the State (Mr. Lewis P. Scott, County Prosecutor, on the brief).
The opinion of the court was delivered by
HEHER, J. In the Atlantic County Court the defendant Kociolek was convicted by a jury of murder in the first degree without recommendation of life imprisonment, and accordingly was sentenced to death; and the judgment is here for review by direct appeal of right under
A prior judgment imposing the death sentence on a conviction of first-degree murder was reversed, 20 N. J. 92 (1955), and the retrial resulted in the judgment presently before us.
I.
The overruling of the accused‘s challenge to the array, or to the panel from which the trial jury was drawn, is now assigned for error.
And reliance is also placed on
The general panel of jurors for the “Stated Session commencing” May 1, 1956 consisted of 390 persons. By order made February 20, 1956 the assignment judge directed that
This “written directive,” the State maintains, “is implicit in the meaning of
And the State suggests that the assignment judge is authorized “to set up separate panels” by the last sentence of
The general panel was accordingly divided into four separate panels, each comprising 75 jurors, designated Criminal No. 1, Criminal No. 2, Civil No. 1 and Civil No. 2, and a fifth called the “Reserve Panel,” consisting of 90 jurors.
The county judge orally directed the sheriff “to cause” the 75 jurors composing Criminal No. 1 panel “to be brought in” for the trial of the indictment returned against the defendant; and this was done. There was no written order to that end. It was stipulated on the hearing of the challenge that there “was no redrawing out of all of the jurors returned for the May term of a panel of 48 jurors, or of any other number, to try this indictment.” The challenge to the array was interposed at the outset; and it was disallowed for want of a showing of “prejudice,” since the accused “in fact was given a larger list than 48,” and there was no merit in the point that recourse should have been had to the “higher panel, including the civil,” inasmuch as the order of the assignment judge directed the selection of “two panels of 75 petit jurors each, to serve for the trial of criminal cases in the County Court at Mays Landing,” and two panels of 75 jurors each to serve in the trial of “civil cases in the Superior Court.”
But the course thus taken was in utter disregard of the requirement of
The statute in peremptory terms directs the drawing of a special panel from the general panel for the particular case; and the basic policy concept would seem to be the timely selection of the special panel to afford the accused, and the State as well, an opportunity for inquiry and due consideration of the qualifications of the jurors, an informed exercise of the essential right of challenge and thus to insure a fair and impartial trial, all this not alone as a concession to the accused‘s personal interest in a just trial, but also in fulfillment of society‘s concern in a rational course of justice precluding arbitrary action and deprivation of life or liberty save by due process of law, a responsibility of deeper gravity in capital cases, indeed a duty embedded in the natural law. The natural life, says Blackstone, “cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority.” 1 Blk. Com. 133. See Hopt v. People of Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884), Harlan, J.; State v. O‘Leary, 110 N. J. L. 36 (E. & A. 1933).
The State insists that
And we are asked to take judicial notice of the fact that “there are but six Counties” of the State having but one trial judge,” and the remaining 15 “are serviced with from two to four County Courts“; that “In counties having two or more trial judges the court rooms are located, more often than not, on different floors of the building, or in separate buildings, and in the case of Atlantic County they are separated by many miles“—the criminal trials are conducted at Mays Landing, the county seat, and the civil trials at Atlantic City, a distance of 19 miles, and the Atlantic County District Court “is two blocks removed from the Atlantic County Court, and the Superior Court is located three blocks from the County Court“; that in the six counties having but one judge, “there can be no division into separate panels, since
But
This provision is designed to secure a fair and impartial jury; and such regulations in their essentials are ordinarily deemed mandatory, and there can be no doubt of the legislative intent to that end here, for the defendant‘s waiver of the “drawing or service, or both, of the list of jurors” is
And a companion provision of the statute,
The provisions of
In State v. Rombolo, supra, the judgment of conviction was reversed since only 31 of the 48 jurors constituting a special panel, duly drawn from the general panel under the particular section, were placed in the box, the others being then in service on other juries; and the holding was, Gummere, C. J., that resort to the general panel for the completion of the jury constituted a violation of
And in State v. Tomassi, supra, Pitney, J. affirmed that the drawing of a special panel of 48 to be served upon the defendant was “required only when the general panel consists
The validity of a challenge to the array of necessity depends upon the circumstances and the right when the challenge is interposed. And administrative considerations are utterly irrelevant; expediency in other directions affords no ground whatever for subverting the essential legislative policy, related as it is to the essence of criminal procedural justice.
And in principle it does not matter that the accused did not exhaust his allowable statutory challenges to the poll. There was here a radical procedural deficiency involving the constitution of the jury.
II.
The defendant contended at the trial that he “suffered an amnesia for a period before the alleged commission of the crime and for a period subsequent thereto,” and there was medical testimony that in such circumstances he would not have a “conscious awareness” of his actions.
In preparation for the earlier trial, the accused‘s then attorneys “hired” Dr. James B. Spradley, a psychiatrist, “to examine” their client “for the purpose of informing the attorneys whether or not a defense of insanity, or some other mental condition, might be utilized.” The client was indigent; and the county defrayed the cost of the inquiry. In the course of the examination, the doctor interrogated the accused as to his knowledge and understanding of the circumstances attending the commission of the offense thus laid to him; and the result was “unfavorable conclusions” which disposed of him as a witness for the defense at either trial.
On the second trial, the State called Dr. Spradley as a witness in rebuttal; and, while it is asserted that he “was limited to expert opinion evidence,” the witness made known to the jury, over objection, the nature and details of his examination and interrogation of the defendant and the ensuing adverse conclusions. He was permitted to testify that the accused had “of his own recollection” recited to him the circumstances of the doing of the thing charged, “detailed information respecting the period right up to the time of the shooting and afterward,” “details of what he did“; and this recital contradicted the accused‘s testimony that he had no recollection of the occurrence, given before Dr. Spradley testified. And the defense had then adduced psychiatric opinion evidence deemed favorable from another specialist, Dr. Dinenberg.
The point made is that the “findings and report” of Dr. Spradley “were privileged and protected from disclosure to the State,” and the “information obtained by” him “from the defendant was likewise privileged“; and if this be so there can be no doubt of reversible error.
The contention of privilege is not based upon the relation of “doctor and patient,” but rather that of attorney and client in that the “doctor was the agent of the attorney and the sub-agent of the defendant, or vice versa,” and “in any event, he was an agent,” citing Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P. 2d 532, 77 A. L. R. 675 (Sup. Ct. 1931); Schmitt v. Emery, 211 Minn. 547, 2 N. W. 2d 413, 139 A. L. R. 1242 (Sup. Ct. 1942); City and County of San Francisco v. Superior Court, 37 Cal. 2d 227, 231 P. 2d 26, 25 A. L. R. 2d 1418 (Sup. Ct. 1951).
The State replies that the accused “asserts the basic Constitutional protection gathered from the Fifth Amendment” to the Federal Constitution; that the cited cases “are all
It is said in argument that if the accused “could waive his own privilege, by testifying on his own behalf in defense,” Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926), “then, a fortiori, he waived the privilege held over the supposed agent, Dr. Spradley“; that the accused “testified fully, as did his expert, concerning a state of alleged amnesia before, at, and after the crime,” and “the witness contradicted this testimony on rebuttal.” To sustain the theory of waiver of privilege, In re Selser, 15 N. J. 393, 404 (1954), and State v. Auld, 2 N. J. 426 (1949), are invoked.
Dr. Spradley and the defendant did not bear to one another the relation of physician and patient; it was not contemplated that the psychiatrist would treat or prescribe a course of treatment for the accused, such as would be deemed needful or prudent after a professional examination and diagnosis; the psychiatrist was retained by the accused‘s attorneys to inquire into his mental condition and competence, with particular relation to the time of the lethal acts, and to impart to his attorneys the benefit of his expert judgment and experience for their use in the preparation and presentation of the defense; and the communications made by the accused to the psychiatrist in response to his interrogation as to the circumstances of the fatality and matters bearing upon his mental processes, and so also the consequent mental diagnosis and opinion, are privileged, just as much so as if the revelations had been made by the accused directly to his attorneys. The privilege extends to the necessary intermediaries and agents through whom the communications are made. And it includes communications between the attorney and a scientific expert retained to aid in the presentation of the defense, a confidential employment. See Annotation, 139 A. L. R. 1256. The principle is of the essence of the
Such is the rationale of the California cases of Webb υ. Francis J. Lewald Coal Co., supra, and City and County of San Francisco v. Superior Court, supra. And in the Minnesota case of Schmitt v. Emery, the basic concept is stated thus:
“Because it is often necessary for clients to communicate with their attorneys with the assistance or through the agency of others, as well as by their own personal action, the privilege extends to a communication prepared by an agent or employee, whether it is transmitted directly to the attorney by the client or his agent or employee. * * * Where a document is prepared by an agent or employee by direction of the employer for the purpose of obtaining the advice of the attorney or for use in prospective or pending litigation, such document is in effect a communication between attorney and client. The client is entitled to the same privilege with respect to such a communication as one prepared by himself. The agent or employee as well as the attorney is prohibited from testifying with respect thereto without the client‘s consent.”
The rule is exemplified in the English cases of Ankin v. London and N. E. Ry. Co., L. R. (1930), 1 K. B. Div. 527; The Hopper No. 13 (1925), L. R. Prob. Div. 52; and more recently in Westminster Airways, Ltd. v. Kuwait Oil Co., Ltd. (1951), 1 К. В. 134, 22 A. L. R. 2d 648. And see annotation in 139 A. L. R. 1250.
In New Jersey, the late Court of Errors and Appeals held privileged a communication made by the accused to a fellow prisoner acting as his amanuensis in writing a letter to employ a lawyer for his defense, as a “confidential” employment “for the purpose of effecting a communication from [the defendant] to his intended lawyer to engage and instruct him“; and it was immaterial that the lawyer had not been previously employed. State v. Loponio, 85 N. J. L. 357 (E. & A. 1913).
The privilege is an accommodation of competing public interests, the ascendency for compelling policy reasons
The essential policy of the privilege is grounded in the subjective consideration of the client‘s freedom from apprehension in consulting his legal advisor, assured by removing the risk of disclosure by the attorney even at the hands of the law, Wigmore, Evidence (3d ed. 1940), section 2291. Lord Eldon said that what at the outset was regarded as the attorney‘s privilege came to be “the privilege of the client and the public.” Wright v. Mayor, 6 Ves. Jr. 281 (1801). The individual interest outweighs the public concern in the search for truth. The foundation of the rule is “out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings.” Greenough v. Gaskill, 1 Myl. & K. 98, 103 (1833). Without secrecy of communication there cannot be the “unrestricted and unbounded confidence in the professional agent” which is essential to the administration of justice. Anderson v. Bank, L. R. 2 Ch. D. 644, 649 (Jessel, M. R. 1876). The privilege is vain if it does not secure freedom of professional consultation. Unless the confidence be inviolate, there will of necessity be restraints upon communication working grievous injury and injustice. The
In the cited English case of Westminster Airways, Ltd. v. Kuwait Oil Co. Ltd., a suit for damages caused by defendant‘s truck which ran into the plaintiff‘s airplane after it had made a forced landing on a highway, the defendant made an “affidavit of documents,” consisting of communications between the insured defendant and its indemnity insurer and insurance brokers after it had become clear beyond doubt that the plaintiff would make a claim against the defendant for the ensuing damages; and the plea of privilege was sustained as including, not merely communications made to the professional agent himself by the client directly, but also communications made by the client to the solicitor through intermediate agents.
The annotation to the case in 22 A. L. R. 2d 660 shows it to be the general rule that a report or other communication made by an insured to his liability insurance company, concerning an occurrence that may give rise to a claim against him under the policy, is privileged as one between attorney and client, if the policy obliges the insurer to defend him through its own attorney and the communication is intended for the information or assistance of the attorney in making such defense.
And it is a corollarial consequence of these considerations that the accused did not waive the privilege by becoming a witness in his own behalf. The privilege is designed to secure the client‘s confidence in the secrecy of his communications; and so it is that the “client‘s offer of his own testimony in the cause at large is not a waiver, for the purpose either of cross-examining him to the communications or of calling the attorney to prove them; otherwise the privilege of consultation would be exercised only at the penalty of closing the client‘s own mouth on the stand“; and the “client‘s offer of his own testimony as to specific facts about which he has happened to communicate with the attorney is not a waiver,” for the same reason; “but his offer of the attorney‘s testimony as to such specific
Involuntary waiver by taking the witness stand in one‘s own defense would subvert the privilege of the confidential relation, rooted in basic societal policy as well as individual right.
III.
And it is also assigned for error that on cross-examination the accused was obliged to testify, over objection, to the “commission of previous crimes of which he had not been convicted,” that is to say, he “had stolen an automobile” and “had written a number of bad checks and forged some,” and the county prosecutor “announced that he would prove that the defendant stole a social security card.”
The State affirms that the testimony was not elicited “to show conviction of crime, but solely to affect the defendant‘s credibility“; that it was “the ‘good faith’ and simple veracity of the defendant with which the State was concerned in propounding the several questions * * *,” and not ” ‘malice’ or ‘ill will’ toward the decedent, State v. Lederman, 112 N. J. L. 366 (E. & A. 1934), or to develop a common ‘scheme’ or ‘plan,’ State v. Noel, 102 N. J. L. 659 (E. & A. 1926), or to show that the defendant committed other crimes of a like nature, Bullock v. State, 65 N. J. L. 557 (E. & A. 1900), tending to prove the accused would be likely to commit the crime now charged against him.”
In brief, it is submitted that the theft of the automobile was opposed to the accused‘s testimony that he “hitch-hiked” from Milwaukee to his home in Bethlehem, the “plain meaning of this mode of travel” not “connoting the theft of an automobile as the means of making a part of the total journey,” and his “credibility” was “properly affected by this series of questions designed to show that his story on this point was not in ‘good faith.’ ” So also, the accused‘s concession that he “used aliases in various jobs in California, because he was worried about a parole officer in Allentown, Pa., growing out of a probation then existing on an earlier conviction,” justified the State in “showing the true motive,
In sum, the State‘s argument is that the “entire series of questions about stolen social security cards, a stolen automobile, the making and forging of worthless checks, were proper attacks on the defendant‘s credibility generally, and particularly demonstrated his lack of ‘good faith,’ as well as his ‘motive’ in developing his life story prior to the murder.”
By statute, a “conviction of any crime may be shown by examination or otherwise” for the “purpose of affecting the credibility of any witness * * *.”
There are exceptions to the general rule that upon the trial of a person for one crime “evidence that he has been guilty of other crimes is irrelevant,” related to opportunity, motive, intent, a particular element of the crime charged,
And such evidence is not competent or relevant on the issue of the character of the accused. Bullock v. State, supra; State v. Henson, 66 N. J. L. 601 (E. & A. 1901), Van Syckel, J.
“[Conduct derogatory to the witness’ character] may be proved provided it does not raise or tender a collateral issue. Thus, it may be proved that a proposed witness has been convicted of an infamous offense, by producing the record. That raised no collateral issue of fact, as the record is conclusive, and there can be no further inquiry. But it is not competent to prove that the witness has in fact committed a crime, if he has not been convicted, although the actual perpetration of the crime is what renders him unworthy of belief. That, if permitted, might raise a collateral issue for trial.” People v. Jackson, 3 Park. Cr. 396.
See Wigmore, Evidence, section 980; also Roop v. State, 58 N. J. L. 479 (Sup. Ct. 1896); State v. Barker, 68 N. J. L. 19 (Sup. Ct. 1902); State v. Bossone, 88 N. J. L. 45 (Sup. Ct. 1915), affirmed 89 N. J. L. 724 (E. & A. 1916); State v. Juliano, supra.
At common law conviction of certain offenses rendered the accused incompetent to testify, because the convict was considered infamous. Pardon restored competency; but the conviction was still provable to affect the credit of the witness—for a pardon “makes not the man always an honest man.” 2 Hale P. C. 278; King v. Crosby, 5 Mod. 15; Curtis v. Cochran, 50 N. H. 242. At the outset, it was the infamous punishment that disqualified, but later on it was the character of the crime that served as the test. King v. Davis, 5 Mod. 75. For the history, see Collins, J. in the dissenting opinion in State v. Henson, supra. See also State v. Salimone, 19 N. J. Super. 600 (App. Div. 1952) Eastwood, J., certification denied 10 N. J. 316 (1952); 7 Rutgers L. Rev. 266.
It was error to receive the evidence of prior crimes of which the accused had not been convicted.
(a) There was no error in the admission into evidence of the photographs of the body of the deceased. These exhibits are within the rule of State v. Huff, 14 N. J. 240 (1954). See State v. Myers, 7 N. J. 465 (1951).
(b) Apropos of the testimony of the witness Umholtz of admissions made to him by the accused, not committed to writing, testimony said to be at variance in a vital particular with that given by the witness at the earlier trial, we think the county judge erred in refusing to charge the request that the jury “should receive, weigh and consider such evidence with caution,” in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer.
There are inherent weaknesses in this character of testimony: faulty memory, the danger of error in understanding and repetition. Such are the reasons for the rule. Bankers Trust Co. v. Bank of Rockville Center Trust Co., 114 N. J. Eq. 391, 400 (E. & A. 1933). “All verbal admissions” of the accused “are received with caution.” Wilson v. United States, 162 U. S. 613, 16 S. Ct. 895, 40 L. Ed. 1090 (1896).
“Aside from the danger of fabrication, verbal admissions are regarded as unreliable evidence, because experience shows that they are frequently misunderstood, imperfectly remembered, and inadvertently made.” Tousey v. Hastings, 194 N. Y. 79, 86 N. E. 831 (Ct. App. 1909).
There is a “general distrust of testimony reporting any extra-judicial oral statements alleged to have been made, including a party‘s admissions“; the “great possibilities of error in trusting to recollection-testimony of oral utterances, supposed to have been heard, have never been ignored; but an antidote is constantly given by an instruction to the jury against trusting overmuch the accuracy of such testimony“; “Verbal precision is of course important to the correct understanding of any verbal utterance, whether
“Perhaps the best statement of [the general principle] has been given in Starkie on Evidence, to the effect that this kind of testimony is dangerous, first, because it may be misapprehended by the person who hears it; secondly, it may not be well-remembered; thirdly, it may not be correctly repeated.”
See also Earle v. Picken, 5 C. & P. 542 (1833).
Here, as we have said, there is a claimed discrepancy between the testimony given by the witness on this and the first trial.
(c) The contention was made that the accused “blacked out sometime before” the time of the alleged crime, “and had no recollection of having committed the crime or having given the statements to the State Police,” also that he was suffering from “amnesia at the time the crime was committed,” and “under that state of mind, he was acting subconsciously, and could not, therefore, form a conscious intent“; and the county judge was requested to instruct the jury that if it appeared from the evidence that “during any of the time when it is alleged that the defendant committed the crime with which he is charged, he had no conscious volition to commit the crime or any element of the crime in which intent is necessary, then you must acquit him.”
But the requisite intent, both as to first-degree murder and the underlying statutory felony, was charged in clear and explicit terms, not once but several times; and there is no cause for complaint that the instruction was not given in the terms of the request, if the subject matter was charged in substance. For instance, the jury were told that “felonious intent” is a requisite element of robbery, and “this intent” the State must prove beyond a reasonable doubt. And the
Counsel insists there was no instruction as to the “absence of a ‘conscious’ intention.” While the particular adjective was not used, the instruction given covered the substance of the request in ample and comprehensible terms, and there is no suggestion of prejudice to the accused in this regard. See State v. Bunk, 4 N. J. 461 (1950); State v. Lynch, 130 N. J. L. 253 (E. & A. 1943); State v. Carrigan, 93 N. J. L. 268 (Sup. Ct. 1919).
The judgment is accordingly reversed; and a new trial directed.
VANDERBILT, C. J. (dissenting in part). The majority opinion reverses the conviction below, among other reasons, for want of technical, but not substantial, compliance with certain provisions of
In the case at bar, instead of the sheriff drawing a list of 48, the defendant was served with a list of 75 jurors drawn from the general panel. It is important to note the care with which the general panel in every county is now chosen. The two jury commissioners in each county, appointed by the Supreme Court on a bipartisan basis,
Then, not more than 15 days before each stated session, the jury commissioners submit uniform metal or plastic pieces bearing numbers corresponding to the numbers of the persons on the jury list to the assignment judge, or a judge designated by him, who examines the pieces and if they are found correct returns them to the jury commissioners, who thereupon deposit them in the jury box,
It is difficult to see, under this practice, how the drawing of 48 or more names by the sheriff from the general panel in the presence of the county judge or the clerk adds anything to the protection of the defendant in addition to the safeguards providing for the drawing of petit jury panels under the statutes and rules herein cited. In fact, the safeguards provided by these modern statutes and rules reduce the requirement of the sheriff drawing a jury of 48 or more to a mere ministerial level. It is as outmoded as the use of “persons of the body of his county” (i. e., talesmen)
“If it is necessary that every juror of the 48 summoned for service at the term should be present in court when a case is called for trial, it would be quite impossible to conduct the prosecution of criminal trials successfully.”
and at page 383 of 48 N. J. L. the reason for the modern approach in statutory construction is clearly stated:
“In the early days of English criminal jurisprudence, when even a trifling larceny was punishable with death, there was reason why the judicial mind should exhaust its ingenuity in aid of the defense, and seize upon every technicality to avert from the prisoner a punishment so disproportionate to his crime. * * * The reason for resorting to mere technicality to enable the criminal to evade the sanctions of the law no longer exists, and the practice to which that reason led should therefore cease.”
The Patterson case was cited and approved by the Court of Errors and Appeals in Brown v. State, 62 N. J. L. 666, at page 691 (1898), where 11 jurors were not found, two were unable to attend by reason of illness and three were absent without excuse, and in State v. Martin, 94 N. J. L.
“Its primary purpose is to protect the interests both of the defendant and of the state by providing a panel of jurors sufficient in number to afford each party the opportunity of exercising the right of challenge to its fullest extent, without being compelled to resort to talesmen by reason of the exhausting of the panel; and it should be so construed as to effectuate that purpose.”
The same holding is reiterated in State v. Cioffe, 128 N. J. L. 342 (Sup. Ct. 1942), affirmed on the point here made on the opinion below in 130 N. J. L. 160 (E. & A. 1943), the court adding
“In this case it is not claimed that plaintiffs in error were prejudiced in any way.”
In the case before us it must be remembered that the defendant did not exhaust his peremptory challenges on the jury list of 75 which was furnished him in advance of trial pursuant to
“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.”
The majority opinion relies on State v. Lapp, 84 N. J. L. 19 (Sup. Ct. 1913) and State v. Rombolo, 89 N. J. L. 565 (E. & A. 1916). The Lapp case does not concern the present statute, the charge there being for grand larceny, but in any event both cases are clearly correct. In each
The majority also relies on State v. Tomassi, 75 N. J. L. 739, at page 743 (E. & A. 1908), where it was stated:
“Manifestly the formality of drawing the list of 48 jurors to be served upon the defendant is required only when the general panel consists of more than that number, the drawing being intended for the purpose of selecting 48 names out of a greater number. Where the general panel consists of more than 48, the drawing is essential. * * * where the general panel consists of 48, and has not been reduced, the statute does not require the idle form of putting the 48 names into a box for the mere purpose of drawing out the same names.”
But if the drawing of a list by the sheriff of 48 names (or more, if the court so orders) is mandatory or jurisdictional and therefore may not be waived as the majority opinion asserts now, in the absence of statutory authority—and there is none—may it be waived in cases of general panels of 48? Does the Tomassi case not demonstrate that the requirement is really not mandatory or jurisdictional, but simply, as the cases quoted prove, one designed to give the defendant an opportunity to investigate adequately his prospective jurors? And do not the steps which are now taken in the choice of a general panel demonstrate that he is given that very opportunity? What was done in the case at bar in nowise derogated from a fair and impartial trial to the defendant. On the contrary, he was given every substantial safeguard. As a practical matter, 48 jurors is not a sufficient number
One of the great objectives of modern procedure is to make it a means to an end rather than an end in itself. Every time a statute or a rule is construed to be mandatory or jurisdictional we are in danger of promoting technicalities at the expense of substantial justice. The latest instance of the application of this principle to civil cases was in the recent opinion of this court in Meszaros v. Gransamer, 23 N. J. 179 (1957). The principle is quite as important in the administration of criminal justice as it is in civil cases.
The difficulties involved in the drawing of jury panels in Atlantic County are unique because Atlantic County is the only county in which the courts sit in two different places—in Mays Landing for criminal cases and in Atlantic City for civil cases. The two places are 20 miles apart. Manifestly, the same panel cannot sit in both places at the same time. The present case suggests the necessity of an administrative study of the entire problem of jury assignments in Atlantic County, but no possible difficulties that may be suggested have any bearing on the jury assigned to criminal work in Atlantic County with respect to its first case of jury duty on a murder indictment.
I would not reverse the judgment below on the first ground assigned in the opinion of the majority.
VANDERBILT, C. J., and WACHENFELD and JACOBS, JJ., concurring in result.
For reversal—Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING, JACOBS and WEINTRAUB—7.
For affirmance—None.