84 N.J.L. 19 | N.J. | 1913
The opinion of the court was delivered by
There was no error in denying the motion for a continuance or in the exclusion of the jurors who had sat upon the jury that had disagreed. These were discretionary matters.
The manner in which the trial jury was drawn was not, however, a discretionary but a statutory manner, and the
The right of challenge which is thus, in a measure, dependent upon the order in which the names are drawn from the box, may be radically affected if .additional names can be put into the box after the drawing of the jury has begun and is practically taken away if such names are put in the box after the defendant’s challenges are exhausted.
The statutory provision for the drawing and challenging of the jury was clearly violated, and a more manifest injury to the defendant cannot well be imagined.
It is no answer to say that the law was not violated with any wrongful intent or any design to wrong the defendant; a law once violated will soon be laid hold of by designing men with a wrongful intent. While the rights of the defendant are primarily considered in deciding whether the law has been violated, the prime importance of the decision is that the inviolability of the law is maintained.
Yor is it any answer to say that the jury was composed of duly qualified jurors; it may well be that no one has a right to say by what particular jurors he shall be tried, but he has a right, within his statutory privilege, to say by what particular jurors he shall not be tried, and this right is taken from him if after he has exhausted his challenges new names are for the first time put in and drawn out of the box.
This fundamental error, which is adequately presented by assignments based upon exceptions taken at the trial, vitiates the judgment now before us.
The judgment of the Passaic Sessions is reversed and a venire de novo awarded.