75 N.J.L. 1 | N.J. | 1907
The opinion of the court was delivered by
The plaintiff in error was tried and convicted in the Middlesex Oyer and Terminer upon an indictment charging him with the murder of one Katie Gordon, and the jury, by its verdict, fixed the grade of his crime as murder in the first degree. The entire record of the proceedings had at the trial has been returned with the writ, as provided by the one hundred and thirty-sixth section of the Criminal Procedure act of 1898.
The first and second causes of reversal challenge the correctness of the ruling of the trial court in sustaining a demurrer to a plea in abatement filed by the defendant, and in overruling a motion to quash the indictment. Both the plea and tire motion were rested upon the same proposition, viz., that the indictment was not found by a lawfulty-constituted grand jury, because two of the members of that body were over sixty-five years of age. By the provision of our statute which prescribes the qualifications of grand jurors, it is enacted that “Every person summoned as a grand juror in any court of this state * * * shall be a citizen of this, state, and resident Avithin the county from which he shall be taken, and above the age of twenty-one and under the age of sixt3fivc years; and if any person AA'ho is not so qualified shall be summoned ás a grand juror * * * it shall be good cause of challenge to any such juror; * * * provided, that no exception to any such juror on account of his citizenship or age * * * shall be allowed after he has been sworn or affirmed." Gen. Stat., p. 1853, § 6. It appears upon the face of the indictment that the crime charged against the defend
It is settled in this state that the improper composition of a grand jury will not constitute a ground for a plea in abatement. The remedy in such case is to challenge before indictment found, or to move to quash afterward. Gibbs and Stanton v. State, 16 Vroom 379; S. C., on error, 17 Id. 353. And where the defendant has had an opportunity to challenge a grand juror before he is sworn, and has neglected to avail himself of it, he cannot afterward take advantage of the lack of qualification of such grand juror by a motion to quash the indictment. State v. Hoffman, 42 Id. 285. The ruling of the trial court, therefore, sustaining the demurrer to the plea in abatement was proper, under the cases cited, for the reason that the defendant was not entitled to question the legality of the grand jury by such a plea. But, as he had been afforded no opportunity to interpose a challenge to either of the members of that body who wex*e over the age of sixty-five years, he was entitled to attack the legality of that body by a motion to quash, and the determination of the propriety of the action of the trial court iu overruling that motion requires a consideration of the meritorious question presented thereby.
The proposition that the cited provision of our Jury act is violative of the fourteenth amendment of the federal constitution, because it does not afford to all persons charged with crime equal protection, seems to us to be unsound. The reason why the legislature has seen fit to confer upon a person who is charged with a criminal offence, the privilege of challenging a grand juror who is over sixty-five years of age, provided the challenge is interposed before the grand juror is
But if our consideration of the question had led us to the conclusion that the criticism upon the indictment was well founded, and that there was error in the refusal to quash, we, nevertheless, would not be justified in reversing this judgment on that account. In the case of Gibbs and Stanton v. State, supra, where the defendants sought to reverse a conviction upon a similar ground, this court — after pointing out that, under the legal system which has prevailed in this state since the enactment of the eighty-ninth section of the Criminal Procedure act, in the year 1855, no error, either of substance or form, will work the reversal of a criminal judgment, unless it is of such a nature that it either did, or might have, prejudiced the defendant on the trial of the cause — sustained the judgment then under review, on the ground that, as the conviction of the defendants was upon their own confession, it was undeniable that the alleged imperfections in the preliminary proceedings could not have prejudiced them upon their trial. The section of the act of 1855 referred to in the cited case is to the effect that no judgment given upon any indictment shall be reversed “for any error except such as shall, or may, have prejudiced the defendant in maintaining his defence upon tire merits.” , The one hundred and thirty-sixth
The next 'ground of reversal attacks the action of the trial court in excusing one Charles Jackson from service as a juror. It appeared, from the examination of the juror on his voir dire, that he was a member of the national guard of the state, and that his regiment was then in camp at the state camp grounds at Sea Girt. Upon this fact appearing he was excused from service by the court of its own motion. That the trial court has power to discharge a juror who is drawn in a criminal case, provided reasonable cause exists for such judicial action, is fully settled in this state. Patterson v. State, 19 Vroom 381; Aaronson v. State, 27 Id. 9. Counsel urges before us that in the present case no reasonable cause existed for excusing the juror, and that therefore the action of the court was not justified under the oases cited. Matters of this kind arising during the course of the trial must, necessarily, be left largely to the discretion of the trial judge, and, unless it be made plain that he has abused his discretion, and that the defendant may have suffered injury thereby, the propriety of his action cannot be challenged upon review. In the present case not only was there no abuse of judicial discretion, but, on the contrary, the excusing of the juror from service was eminently proper under the conditions disclosed.
The next cause of reversal is directed at the instruction of the court to the jury as to the constituents of the crime of
The next cause of reversal is directed at an alleged error of the trial court in refusing to stop the prosecutor of the pleas, in his summing up to the jury, upon the application of the defendant. The language complained of was that the defendant was “a monster in his passions, licentious in his desires, beastly in his love, brutal when thwarted and cowardly when caught.” The evidence submitted to the jury showed
The last cause for reversal assigned is that the verdict is not sustained by the evidence. A reference to the decision of the Court of Errors and Appeals, in the case of State v. Jaggers, 42 Vroom 281, is all that is necessary for the disposition of this point. It is there pointed out that under the one hundred and thirty-sixth section of the Criminal Procedure act, as originally passed in 1894, the court of review was required to examine the evidence for the purpose of determining whether or not it justified the verdict of the jury, but that since the amendment of that section by the revision of 1898 that duty was no longer required of the. reviewing tribunal. It is contended by counsel, in his argument, that the certification by the trial judge of the entire record of the proceedings had upon the trial is practically the same as if this court had issued its certiorari to the Oyer and Terminer to send up the evidence in the cause. He refers to a suggestion to that effect made by the court in State v. Hummer, 44 Vroom 714, and the argument based upon this suggestion is that the court, having before it the evidence, ought to examine it for the purpose of determining whether it justifies the verdict of the jury. It seems to us, however, that the cer
We conclude, upon an examination of all the matters presented to us on the reasons for reversal and by the assignments of error, that the conviction under review should be affirmed.