75 N.J.L. 502 | N.J. | 1907
The opinion of the court was delivered by
This writ of error is directed to the Supreme Court, and brings up with the judgment of that court an indictment for murder and a conviction thereunder in the Middlesex Oyer and Terminer which was upon error affirmed by the Supreme Court. The grand jury that found the indictment was organized on the 3d day of April, 1906, at which time two grand jurors who were above the age of sixty-five years were sworn without challenge. On the 20th day of the same month the plaintiff shot and killed his niece, for which he was indicted by the grand jury which was then sitting. This circumstance, namely, that the two grand jurors who were above the age of sixty-five had been sworn before the offence for which the plaintiff in error was indicted had been committed, gives rise to the main contention upon which counsel relies for the reversal of the judgment contained in this record. The broad contention of counsel in this respect is that section 6 of the revised act concerning juries, which provides that a grand juror who is above the age of sixty-five years shall be discharged if challenged before he is sworn, denies to the plaintiff in error the equal protection of the laws, in violation of the first section of the fourteenth amendment of the constitution of the United States.
This contention is thus concisely stated in the supplemental brief of counsel for the plaintiff in error: “Since the object of the statute directing the discharge, upon the objection of the defendant, of persons returned as jurors, but not possessing the necessary qualifications, was the benefit or protection of the defendant, the right of objection to such unqualified persons must be extended to all who are within the reason of the provision.”
The syllogistic argument upon this point is as follows: The right to challenge any grand juror upon any of the statutory grounds contained in section 6 of the Jury act is a legislative measure for the benefit or protection of persons charged
This conclusion, it will be observed, rests fundamentally upon the proposition that the right to have a grand juror discharged upon the statutory grounds stated in section 6 of the Jury act is for the benefit or protection of a particular class of persons, whom, to avoid constant paraphrase, we shall call putative criminals. This class includes those who have actually committed crime before the grand jury was sworn, or who at that period were charged with or suspected of crime, or who, being wholly innocent thereof, were ignorant of the fact that they were so suspected, as well as those charged with having committed a crime during the sitting of the grand jury — that is, after the administration of the oath to its members. Inasmuch as the entire class thus constituted stands in a similar relation to what counsel conceives to be the purpose of the statute, and in equal need of its benefit and protection, his contention is that the circumstance that the crime for which a given person was indicted was committed after, rather than before, a given grand juror was sworn is insignificant upon the question of the substantial character of the classification apparently adopted by the legislature, which, unless it be substantial, places the statute under the ban of the fourteenth amendment of the federal constitution.
The question as argued by counsel turns therefore upon the substantial character of the classification - of putative criminals into those charged with a crime committed before
The Supreme Court, adopting, provisionally at least, the construction placed upon this statute by counsel, reached the conclusion that the section in question did not violate the federal constitution, because the classification on which it was based was substantial in that it treated alike all persons who were charged with crime under like circumstances and conditions, and that the circumstance that crime was committed at a time when the right of challenge could be exercised rather than after it had expired afforded a substantial basis for classification upon which the denial of such right to persons who fell within the latter class might constitutionally be rested. State v. Lang, ante p. 1.
Whether, if we were to admit the soundness of the construction placed upon the statute by counsel, we should come to the conclusion that he has reached, or to that reached by the court below, is a matter that need not now detain us, for the reason that in either event such conclusion would, in our judgment, rest upon an essentially mistaken conception of the purpose and scope of the sixth section of the Jury act. In fine, we do not concede that the object of that enactment was the protection of criminals, either actual or putative. Indeed, we see no valid reason for supposing that the statutory grounds of disqualification of grand jurors set forth in the section under consideration were instituted by the legislature for the benefit of any special class of persons, or that the scope of its protection was anything less than the entire community, the law-abiding as well as the law-breaking. On the contrary, in order to state at once the conclusion to which we have come, we think that the purpose of the statute in question was the furtherance of the due and efficient administration of justice for the protection of those against whom crimes might be committed, as well as those who might be charged with the commission of such crimes, and that when the legislature declared that lack of state citizenship or county residence, that non-age or advancing j^ears should constitute disabilities in a grand juror, the object sought to be attained
Our reasons for thinking that the statute has this broader scope are many and various. In the first place, the grounds of the declared disability of grand jurors are all directed at the make-up of that body with respect to its working efficiency and representative character, and are by this feature as widely as possible distinguished from those common-law grounds of challenge for prejudice, malice, ill will, and the like, which, being directed solely against a given person, conferred upon him a personal right of challenge. Uo reason has been given, and none can be suggested, why a grand juror who was under twenty-one or over sixty-five, or who was not a citizen of the state or a resident of the county, should, on any of these accounts, be either more or less likely to favor the indictment of a given person against whom a criminal charge might be preferred; whereas, upon the other hand, there is every reason why a representative body of men who are to form part of the judicial machinery of a locality should be composed of persons sufficiently identified with the state and county to be citizens of the one and residents of the other, and why a public body of whom responsible and discriminating duties are required should be of an age when judgment is presumably mature and when the physical and intellectual powers have not begun to decline. In this connection the provision of the statute that a challenge for any of the recited disabilities shall, if sustained, lead to the absolute discharge of the grand juror points strongly in the same direction, and serves further to distinguish the purpose of these statutory challenges from those permitted at common law, which resulted
If such had been the legislative purpose, it is only fair to presume that some sort of provision for the practical accomplishment of such purpose would have been provided.
I am not, of course, suggesting that persons who are apprehensive of being indicted may not be present, if they choose, at the opening of court and challenge any grand juror upon any of the grounds set forth in this statute, but I am insisting that while such right exists it is not confined by the statute to the particular class to which such persons belong, or intended for their sole benefit and protection. The motive that actuates the challenge of a putative criminal may be different from that of the ordinary person, but his right is no greater. If the object of the statute be to obtain a public body possessing certain qualifications, the motive that directs the attention of the court to the fact that one or more of the persons summoned for service upon such body do not possess the requisite qualifications is quite immaterial, provided the legislative object be thereby forwarded. To this end the legislature may well lay hold of the most diverse motives. In this connection it is most significant that the challenger of a grand juror may be amicus curies, and this has been the rule of the English courts from an early period. In 2 Vin. Abr., p. 475, tit. “Amicus Curies,” it is said: “Upon an outlawry the question was whether one as amicus curies might appear and quash .an inquisition found upon the outlawry for matter insufficient apparent. Barons Nicholas and Parker take it clearly
Other instances of the exercise of this right by amicus curies are given by Mr. Justice Bradley, in United States v. Gale, 109 U. S. 68. Mr. Bishop says: “Doubtless it is competent for the court to permit an amicus curies to suggest an imperfection in the empaneling of the grand jury.” 1 Bish. Cr. Pro., § 877. In our own state the question came before Mr. Justice (now Chancellor) Magie, in the Somerset Oyer and Terminer, in a ease reported in 3 N. J. L. J. 153, sub nom., “Challenge to Grand Jury,” where Mr. Justice Magie is reported to have said: “In the case of the present body, which was empaneled at the first of this term as a grand jurjq two objections are made. One comes from the prosecutor of the pleas, who represents the state. In the exercise of his duties representing the state he asks the court to examine alleged irregularities, because, as he says, and with great propriety, the court ought not to proceed to try indictments found by the grand jury in respect to whose constitution and empaneling there is a legal question. The other objection comes from a counselor who as amicus curies, or as counsel for accused persons now in jail awaiting the action of this grand jury, also interposes objections. An objection may be made by counsel either as amicus curies or as representing accused persons actually awaiting the action of the grand jury.”
Counsel for the plaintiff in error in his brief admits the existence of this practice, and cites several cases that support it, including 9 Encycl. Pl. & Pr. 723, tit. “Friend of Court.” The force of this practice is met in counsel’s brief by the suggestion that as such amicus cuñes has no remedy by writ of error, the fact that the defendant before the commission of his crime might have acted as amicus curies does not give him qua defendant the equal benefit of the laws, a suggestion which begs the question, and manifestly has no relation to the significant feature of the practice.
To impute to the legislature this train of impracticable absurdities, when its enactment is capable of another construction that is at once reasonable, practicable and consistent, is contrary to the canons by which this branch of the judicial function is regulated and controlled.
As against all these considerations there is but a single opposing line of argument, namely, that from the circumstance that the revision of 1874 placed the right of challenge
It is, however, familiar law that in construing a revision of statutes made by the consolidation of previous acts of the legislature the same meaning should be given to such constituent statutes in their new setting that was accorded to them when enacted, unless a different legislative intent is plainly apparent. Clement v. Kaighn, 2 McCart. 47; State v. Anderson, 11 Vroom 224; Smith v. Regan, 25 Id. 167; In re Murphy, 3 Zab. 180; Fries v. Hendrickson, 16 Vroom 555; O'Hara v. Biscuit Company, 40 Id. 198, 202; State v. Hoffman, supra.
Where such consolidation results in a legislative fiat that differs materially from the mandate of the original statutes, the purpose of the legislature to substitute such later expression of its will for the earlier one is plainly apparent. Thus the statute now under consideration was held by this court in the case of State v. Hoffman to extend to grand jurors the requirement respecting the period within which challenges must be made, although by the original act concerning juries
The argument of counsel which we have thus rehearsed in no way militates, in our judgment, against the conclusion that the sixth section of the Jury act was intended for the general promotion of efficiency in an arm óf the court, and not specially for the benefit or protection of any particular class. The argument that has been erected upon this latter proposition, and upon the supposed necessity of a classification sufficiently broad to include the plaintiff in error, is therefore without legal significance, and falls to the ground.
We reach thus, although upon different grounds, the result reached by the Supreme Court. With the views that obtained in that court we have, for reasons already stated, no present concern, excepting to say that no opinion concerning them need at this'time be expressed.
Finally, it should be noted that in all that has been said we have been dealing with the statutory disabilities of grand jurors alone, and upon grounds that are applicable to challenges for such causes only. .Whether the words of the statute, “any other legal disability,” include the common-law grounds of prejudice, malice, and the like, and if so, what would be the rights and remedies of an indicted person who had had no opportunity to challenge a given grand juror upon these personal grounds, is not involved in the facts of the present case, nor in the line of reasoning upon which, in our judgment, its decision should be placed.
The other grounds assigned for error are fully discussed in the opinion delivered in the Supreme Court by Chief Justice Gummere, in whose conclusions upon these points we entirely concur.
In all respects, therefore, the judgment of the Supreme Court is affirmed.
For reversal — None.