*1 avoided, when that result thus may be place upon innocent child the save as it stigma may bastardy, made legitimate by But these remarks of the legislative fiat.” learned Chancellor were addressed to a situation where there was a ceremonial which was and not voidable abso- marriage void. The ceremonial here lutely marriage questioned statute, void” command mandatory “absolutely 37:1-10, N. J. A. the children 8. ceremonial mar- we have held B. to be 9:15-2. riage legitimate pursuant 8. case, therefore, The Caruso is not in point. is affirmed. No costs. judgment
Waci-ieneeld, Brennan, JJ., Jacobs and concurring result. For Vanderbilt, Justice and Justices affirmance—Chief
Heiier, Oliphant, Wachenbeld, Burling, Jacobs Brennan—7.
For reversal—None. JERSEY, PLAINTIFF-RESPONDENT,
STATE OF NEW PONTERY, IDA DEFENDANT-APPELLANT.
Argued September 7, 1955 Decided October 1955. *4 Mr. Franlc G. Schlosser the cause for argued appellant. Mr. John D. Collins, Morris County Prosecutor, argued the cause for the State. opinion court was delivered by defendant, J. The Ida Pontery,
Wachenfeld, indicted in form a Morris statutory County grand jury for the murder of her husband, Dr. Herbert After Pontery. trial, she was protracted found guilty manslaughter sentenced accordingly.
She and submits for appeals consideration trial alleged errors the failure to embracing sequester jury, errors the admission and rejection of testimony, alleged compulsion the trial court of a verdict aby hopelessly deadlocked errors in the and in jury, charge jury, a new denying trial after the defendant’s had admitted daughter swearing at the trial. falsely
463
The factual situation varies with version accepted there are conflicts in sharp many aspects, but following is a fair resumé from the record.
At the time of the Dr. death, Pontery’s shooting causing he had married defendant, been to Mrs. Pontery, for 36 over One child had been of the years. marriage, born Doris, who was then 33 years of Doris age. graduated junior from and secretarial school. She lived at college home her with father and mother until they separated.
Mrs. son, William, also had a a Pontery mar- by previous who was then He a riage years of was member of age. married, the Port and lived in his Authority police, own home.
Dr. and Mrs. homes, maintained Pontery two main residence in Jersey City, office, where the doctor had his a summer Drakestown, Lake, home at near Budd New Jersey, where the occurred. The doctor’s shooting practice, ethically successful, was nevertheless questionable, while financially Mrs. is described her Pontery counsel as independently wealthy.
In 1954 the and the February Ponterys wife separated moved into a three-room apartment Cliffside. Suit for maintenance was instituted her her separate hus- against band allowed. The temporary alimony Doris, daughter, remained with her father.
At the 1954 Mrs. July moved beginning Pontery into the summer home and remained there alone 3, until August Monteleone, when a friend Monseigneur close of the family, arrived at the summer home to his vacation in spend located which was bungalow upon premises, his custom. thereafter, A few days on Dr. August Doris Pontery, arrived the summer William at home. entered They kitchen, Doris of food. carrying package
Irreconcilable conflict of the testimony witnesses from this beclouds events on until the point shooting and the next son testified day. on behalf daughter entered the house, that when Doris they State started some food Their into mother entered put refrigerator. *6 the and kitchen told Doris to her a stop, little calling “dirty bitch” and her. Dr. and William striking Pontery inter- vened and Mrs. Pontery went into another room and made a call to a telephone lawyer. Later she returned and a truce The declared. in dinner that family joined evening and no further apparently outward manifestations of hos- exhibited, were then tility but the next did not conclude day so fortunately. William, to Doris and the
According had family breakfast the next together The doctor and morning. left daughter to do some errands and William visited nearby. friends living returned at They about noon and Doris frank- prepared furters a lunch in picnic for the Doris went yard. outside and the doctor from the house an electric emerged carrying saw had him which been his wife time some before. given The wife what he angrily to inquired to do going with it and the doctor’s that upon he was reply going put it shed, in the tool him, she remonstrated with took the saw and walked away into the house. The doctor followed her and stood the kitchen to the talking Monseigneur, William, who was at the stirring outside, stove. who was soup house entered the a few later and moments Doris followed him in. Mrs. it is said, came into the kitchen Pontery, from the her bedroom, direction of a revolver at the doctor pointed and fired. bullet struck him near his left and arm-pit he the died fell to floor and minutes later.
William, State, for the and said he his sister testifying were in the kitchen the the at time of He shooting. yelled run, to his that their sister mother He said gun. he ran of the and out house then to home of a nearby him named informed what had neighbor Young, happened and asked be called. police ran
Doris testified she out house ahead of her brother, toward the station which was parked wagon, yard, with intention of said her She mother escaping. from house and started at her. emerged yelling shooting She behind car Mr. Young, and dodged parked neigh- her bor, came disarmed mother. then up She returned ran her father was dead. She to the house and discovered fists, her mother over the head with her inflict- out and beat a scalp wound. ing as what occurred was otherwise.
Mrs. version Pontery’s Dr. William and Doris Pontery, that when She testified announced, her son William entered house August she We said went stay.” “Hitler dead. are here to She returned, her When she lawyer. into her bedroom to call and she asked Doris was a melon putting refrigerator her so because would taint other food not to do strike proceeded Doris became refrigerator. angry unsuc- her head side neck. She pleaded about her he and did with her son to stood cessfully stop and cried. She ran into the bedroom nothing.
Her view of this first incident was supported by Monseig- Monteleone, not testified who, by neur present, although when the house later on he saw that he came into deposition a mark on her and a on her Pontery lump Mrs. with neck him, told of her son and presence head and she had beat her. And after immediately that Doris daughter, state, arrest, while she was in a she related hysterical her her a been children. having by to officers beaten police story her her arrest found two A who examined following doctor neck, Mrs. and smaller bruises and Pontery’s on bruises large he which body, areas elsewhere on her all of diag- painful traumatic injuries. nosed as watched television Pontery, family to Mrs. According and returned then Monseigneur for while evening The wife said she had a Pontery. his with Dr. to bungalow William, room with her son who living conversation life, to her about his mother claiming lot complained Doris, and demanded a sum of favored always large from her. money she arose and breakfast early
On the cooked following day, coffee, her husband for cup although was joined by and not drink what she had prepared, he preferring would and Dr. washed the station Pontery wagon make his own. left. and William he, Doris
Later that Dr. came in morning Pontery and asked her where the electric was saw and she him took downstairs and showed him its location. then She went upstairs and Dr. carried the saw and Pontery a sander outside.
She spent rest housework and morning doing a chicken which she preparing intended to serve to the entire family. When was dinner she went ready, outside to call them and the tools in upon seeing the station she wagon, them and took out carried them into the house.
Mrs. said Pontery she went outside call again to them and on the when the came porch up son started standing her to beat threw her into the violently kitchen. Her husband entered and started to at her and yell beat her about head and chest. said the She who Monseigneur, the kitchen, also in ran intervened and she into the bedroom. This was confirmed says who Monseigneur, he saw the son after porch, Mrs. striking Pontery either the or which son Dr. Mrs. Pontery picked Pontery kitchen, neck and threw her into the her up kicking in the back he did so. The her in and doctor followed her in the kitchen. testified began beating Monseigneur he his arm him let her alone and told grabbed doctor said he was her a “I am going give good beating. version, her.” Mrs. to his Pontery, finish going according ran broke into the bedroom. away She said she was and cornered and wanted some- desperate *8 to herself with. remembered old She an thing protect bedroom, his revolver in Dr. dresser drawer in Pontery’s there, went the and into the room. got gun emerged dining said, and intention, It was her she to herself only protect when scare the doctor and the children. insisted that to She the the her hands she came into room doctor dining grabbed kitchen; the and ensued which carried them into struggle kitchen, while were the revolver acci- wrestling they ricocheting the shot off the dentally discharged, ceiling. off, second shot went her continued and a
struggle killing husband. when to slumped that her husband further testified
She run to the station Doris to floor, yelled wagon William ran out and when Both Doris and William his and get gun. house, fired from the Doris several Pontery Mrs. emerged Later, had dis- but missed. after Mr. Young at her shots house hit her from the over her, Doris emerged armed her knocking down. the head with a gun, health, in bad was 78 years age, The Monseigneur taken, his testimony at the trial and ill to testify too indicated, by deposition. already the verdict jury the rendition of Following sentence, Doris, the daughter, appeared set for day having perjury confessed to committed court and allegedly before the shoot- immediately said that the trial. She during mother, her severely enough had in fact beat her brother ing, floor, had her and that she helped fall to the her to to cause the house. She also she ran into her feet before mother to her told her brother not shooting after the testified that he and in return he had beat his mother up tell police had fired at their mother with them that she would tell not she at the trial that fired revolver, she denied having his testimony, this mother. On recantation at her shots any her father strike her mother on seen denied she still having hit her and she also denied having question, day day. on the previous mother that motion was development this factual upon It was of newly trial on the basis discovered new made for a more hereafter. denied, which The motion evidence. Jury Sequester Failure selected, the announced prosecutor been After the death the State was not demanding court open not might thereupon suggested The trial judge penalty. under those circumstances sequester necessary for the defendant at view. Counsel the defendant’s and asked said, as the State was long so trial, other things, among see “I no reason why death penalty, not seeking
467 should be and could sequestered,” justice be done without it. The court then queried the on his view prosecutor and he insisted the The court sequestered. it implied would accede to the prosecutor’s Counsel for the de- suggestion. fendant then called the court’s attention again to the fact that “this be a and may protracted trial and long * * *” sequestration jury would be expensive and he “urged” the court to exercise its discretion against seques- tration. The court refused to do so in face of the expression prosecutor to the contrary.
In his formal to the opening jury, prosecutor again stated: “The State is not the death demanding penalty this case.”
theAt close on the testimony first day, trial announced he had judge consulted with the attorneys both sides and have “they both indicated that they have no if I objection was to and permit you ladies gentlemen to go home rather than be sequestered every day every night. * * * that So ladies and you retire can gentlemen your homes each and come here back night He morning.” also warned them against with discussing anyone case other instructions which are gave protective not in issue. defendant, on appeal being represented by another submits attorney, that court erred in to have the failing substance, In sequestered. she asserts this awas capital case and the defendant had a fundamental to have the right Cucuel, State v. 31 sequestered. N. J. L. 249 Ct. (Sup. J. 1865); O’Leary, State N. L. 36 & A. (E. 1933). followed procedure was not Although objected to indeed, but, defendant was the result of defendant’s solici tation over the request prosecutor’s initial objections, it is insisted we should take of it notice error plain under R. R. 1:5-1 (a).
The first is whether or not this inquiry remained a capital case in of the fact face the prosecution announced in court was not the death open seeking penalty. ease, upon
Relying O’Leary supra, the defendant says of the death penalty by waiver the prosecution was not *10 the that the indictment alone controls in jury, binding upon is a The whether it case. defendant capital determining contends: penalty prosecution opening the waived the death in its “While jury ignored summation, waiver, could have the as it could the ignored charge forbidding penalty." the court’s the death
have In this the court respect charged: you im- of life if did not make the recommendation “So that you prisonment, carry penalty, case it would the death this you of If a verdict murder cannot render such a verdict. find degree, im- recommendation of life first it must be with a the prisonment.” court’s so charging. We think there was error one. remained a case, capital adjudications, The our by L. & A. 1930). 106 N. J. King, (E. Although State the death penalty had a to waive the prosecutor right had the prerogative, nevertheless jury, jury so inform statute, to return a it, under the if decided to exercise it The likelihood it the extreme penalty. verdict with carrying remote, did the court so, not give its ever although of doing as did. The court could have properly it the right charge it present that under these circumstances the jury charged the death penalty did the that assume, prosecutor, would for, but the as it was not asked jury not be returned would by its to do so right given stripped could not be Legislature. has recent of the sequestration question and attention. Accentu- importance
date assumed increasing trials, of criminal plus length high by protracted ated facilities required jury, and living the housing cost of constantly modern seems to be tapering decisions the trend of the confinement of the idea ancient off from the to insure an uninfluenced ease is prerequisite in a criminal is longer former no procedure The rigidity verdict. as a whole. Judicial discretion and the courts accepted with added constantly are meeting powers supervisory proper support, and the basis of determination seems to whether or not the record indicates possible actual or any prejudice by reason A full departures in. and inter indulged treatise on the esting all of the subject, presenting phases many decisions, is found in conflicting Washington State of v. Amundsen, 37 356, 223 L. Wash. 2d P. 2d 21 A. R. 2d 1088.
The latitude allowed or adherence to the rule varies A jurisdiction. few states still maintain according dispersal is forbidden where even the defend- ant In others, consents. numbers, per- increasing *11 mitted in the the discretion of court but where there only is the others, consent the of defendant. In is dispersal per- mitted in the discretion the of court where the excepting defendant while still objects, dispersal in others is permitted of the court discretion even when the defendant objects. The states the last are in rule predominance adopting aby majority. large
The have question appears to been clarified and settled in the federal in jurisdiction, where even a jury separation case with the capital trial Wheeler v. discretionary judge. 82 States, 363, U. D. 165 F. United S. C. 2d 225 App. (Ct. denied, 448, C. cert. 333 68 App. 1947), D. U. Ct. S. S. 92 L. The was (1948). Ed. 1115 defendant found of guilty sentenced death. murder and to His complaint, amongst that the was other allowed to things, jury separate during 2d, the court the course of trial. The said F. at (165 page : 229) jury together keep capital the trial of case “Whether to the jurisdiction. discretionary in is respect this The court’s action in that affirmatively appears will not be reviewed unless it
prejudice to defendant.” resulted here rule is whether or not the inquiry sequestra- tion, our should be existing jurisdiction, dogmatically death followed where waived the prosecutor penalty only importuned pro- defendant not consented but rule. sequestration suspension posed the trial judge, J. 426 Auld, (1949), In N. State of the the consent and with a request to response by him- the defendant the absence of but in defendant’s counsel had written which he self, paper transmitted was contended return, and it it could verdicts the possible court determined for our Oliphant this was error. Justice main- with the defendant’s right interference there was no error merits and no prejudicial on the tain his defense : absence, 431) p. his saying (at reason amounting irregular “Unfortunate, incidents inexcusable during procedural practice of the trial the course occurred bad Judge, Pleas or counsel Prosecutor of the the case. Neither to have arisen.” these situations have allowed for should the defendant to the that no objection particularly And again, noting made any request nor was made counsel procedure said: the court present, that the defendant be Rule failed to take into consideration further has “The defendant any given upon judgment provides 1:2-19(6) indictment ‘No which ** except any such as error [sic] For *. be reversed shall maintaining prejudiced his defense the defendant shall have upon the merits.’ privy irregular Conceding procedure to the both as here to be judge of the and the absence with the communication do, compelled trial, stages are which we defendant at some prejudice irregularities defendant such test is whether the sole *12 maintaining on the merits.” in his defense Auld like the Roscus, 16 N. J. (1954), In State was death error penalty, case, a trial resulting supra, of of sequestration the interruption because of claimed what consented to the defendant But the court found jury. : held page 428) unanimously (at and we occurred, had existed, error, and, clearly if even one no “There objection timely by failing thereto.” to enter defendant waived reason to show prejudice here attempts The defendant newspaper publication, in a certain an article appearing or even influenced there is no proof in the article question. read
Out rules that uo shall provide be reversed for judgment error any such as shall have except the defendant prejudiced his defense on the merits. B. B. 1:5—1(&). maintaining The record in the instant case shows no such factual basis.
The defendant cannot beseech and the trial request court take a action, certain course of and upon adoption court, take his chance on the outcome trial, if unfavorable, then condemn the very he procedure it to sought urged, be error and claiming prejudicial. We have found no such adjudication books, our are nor we to extend prone or enlarge other factual ruling situations to to the case apply sub judice.
In case, a murder where the death is waived penalty by the prosecution and the defendant asks for or consents to the dispersal of the jury, the defendant will not then be heard to claim error or after prejudice the verdict is ren dered, unless he can he prove was prejudiced.
The Limitation the Ceoss-Examination Ponteey the Witness Doeis
The defendant assigns error the trial limita judge’s tion cross-examination of the witness, State’s Doris Pontery. Doris was one of two eyewitnesses who testified for the State. Her testimony was pertinent and impressive, the defendant had the to seek right to minimize its impor tance by attacking witness’ Her credibility. hostility toward her mother and any special interests she have may had in her testifying against were fair grounds inquiry.
The defense endeavored to show that Doris was hostile toward her mother, and she had a additionally, special interest her. To show her testifying against antagonism, defense counsel asked her not, whether she had after shortly her mother and father separated, to her gone mother’s safety deposit box and withdrawn her mother’s jewelry without her mother’s permission. On objection, the trial court excluded this testimony.
472 respect, in this the court’s ruling the discussion of
During whether ask Doris he also intended to counsel announced brother, the sole William, her was, to she for except legacy knew that she father’s will and whether under her beneficiary her forfeit convicted, her mother would if her mother her father. interest in all real estate owned line cross-exami- this object did not to The prosecution volition, to allow refused, its own the court on nation but the trial court’s opinion, asked. In such any questions the jury. prejudice it do nothing as would expressed, this sort “to permit he did not feel it was proper He said theory witness on this particular of examination of financially her nest feather own she is or order to lying court, the ruling discussing day, On following “might such line of any inquiry announced on question, counsel permit witness” and refused to tend to degrade this line. to proceed along that the in this respect the court erred
We think judgment a reversal was prejudicial, requiring ruling rendered. witness has the privilege against
In no jurisdiction, our him. In because might degrade testimony simply giving “* * * the we said: Vince, 2 N. J. 454 In re (1949), exists.” such privilege to be clear that no answer appears which bears rule, fact any as a Additionally, general the issue relevant to of a witness is credibility against is called the witness tried, whom party against being in order laid the jury have that fact before has a right credit should be given what to aid them determining Black, N. J. 361 L. (Sup. v. State person testifying. defense or for either the And it is 1922). proper Ct. interest a witness bearing upon show the prosecution J. L. 233 DiDolce, N. credibility. witness’ State otherwise, the value of cross-exami Were it & A. 1932). (E. courts our truth which goes in the search for nation respects some curtailed severely would be every day extinguished altogether. perhaps
473 however, that the cross- mean, This not does of under the examiner has license to roam at will guise a authority weight the witness. By great impeaching Friedman, & A. L. 514 here, 124 N. J. (E. e. Fielder v. g., Todaro, 1943); L. 59 Ct. 131 N. J. 1940); (Sup. State v. P. 658 429, 134 2d elsewhere, 156 Kan. Kelly Meyer, W. 2d 105 136 S. Wolfe, Ct. Heathcock v. 1943); (Sup. Co., Atlantic S. S. 1940); McCauley v. App. (Mo. Pacific State, Blue v. 80, 1941); 167 Ore. 115 2d 307 Ct. P. (Sup. 377, Wig- 3 1946); 224 Ind. 67 N. E. 2d 380 Ct. (Sup. more, the trial 943 ei 1940), seq., judge Evidence ed. (3rd §§ of cross- determine the limits has broad discretion to proper in issue. examination a witness whose credibility put safety that the had to the mother’s fact daughter gone her the mother’s per- box to remove without deposit jewelry return demand for its and the mother’s subsequent mission some relevancy demonstrating was admissible as having her mother. daughter’s animosity that the J. 55 we held
In Neiman v. N. Hurff, (1952), Such entirety. being would forfeit an estate by mother her mother’s law, stood to from certainly Doris gain field murder and it was proper conviction of the crime of determine the cross-examination to daughter’s inquiry if her she acquire of the financial benefit might knowledge she was the crime for which being mother were convicted of have a awareness of it would tried. Her knowledge the witness’ interest. material upon bearing it at time had no the court Although knowledge the witness by admission subsequent of its ruling, her at the trial and recantation perjury she committed the cross- she had indicates given which testimony of certain was in fertile fields and pursued examination being falsifi- witness’ motives for related to the possible directly cation. Worn the Deceased
The Admission Shirt oe erred in into evidence It is said the trial court admitting S-33, á shirt said to have been worn Exhibit blue deceased at the time he was It is claimed there shot. no positive identification since the doctor who performed and in autopsy whose presence shirt was removed from the of the deceased body could not specifically identify said: “It resembled this shirt much but I could very not this was the say shirt.”
He also testified that he all deceased’s gave posses- sions, which had including been removed from clothing Martin, Dr. Pontery, detective the New Jersey State Police Department, in a pasteboard carton. Martin testified *15 he received the Costello, clothes from Dr. which amongst were an undershirt and an outershirt. He identified an outershirt shown to him as the prosecutor one which he received Dr. from Costello and which he turned over to Detective Lea. This shirt was marked S-33 for identification. Lea testified he the shirt to gave Mr. a chemist em- Duffy, the New ployed by Police, State Jersey who examined the shirt returned it to Lea. The shirt was subsequently marked Exhibit S-33 in in evidence the trial.
Condit, an attendant at the Dover where Dr. Morgue taken, testified Pontery’s body he assisted Dr. Costello in an on performing autopsy and removed the August clothes from the The body. clothes were in a placed box him and Dr. He Costello. testified that only one corpse was undresed at the on that morgue day. in her Pontery
Doris testimony described shirt her father was 7 and the shirt wearing she described August was identical to Exhibit S-33.
The evidence seems indicate positive identification of S-33 and there was ample evidence reference to it to its admission in evidence. justify oe The Admission Conversations with the Police by Monseignetir Oeeicers Monteleone It will be recalled the did not Monseigneur testify at the trial his person before, taken some time deposition, was offered in His evidence. the de- testimony supported fendant’s rebuttal, version almost all On respects. prosecution called several police officers to as to their testify conversations with the Monseigneur following shooting, in which the made Monseigneur statements apparently contradictory to those which he in his The gave deposition. defendant these statements not been urges, having given accused, presence were and were admis- hearsay not sible as part of res gestae.
There is little merit in the defendant’s view. Irre spective rule, of the res gestae statements were offered by and were prosecution admissible as inconsistent prior witness, statements of the foundation proper having been cross-examination, laid therefor on e. Chiesa g., v. Public Trans., Service Co-ordinated 128 N. L. 69 & A. J. (E. 1942). Charge Refusal Court’s the Defendant Right Retreating Had a to Defend Herself Without The defendant contends the trial court erred in charging as follows: person upon “A whom an assault is made so violent in its character endanger injury bodily as to his life or threaten him with serious justified standing ground killing is not or excusable in his his *16 impending danger by retreating.” assailant if he can avoid the Since in home, Mrs. was her own the defendant Pontery she was under urges no to “retreat to the wall” obligation before in her own defense. acting
This, course, is the' traditional common-law doc trine. here, The however, is different as home problem which occurred owned shooting jointly by law, decedent and the defendant under our while the alive, doctor was he had an equal to be there. Under right circumstances, these the common-law rule was not applicable and the court committed no error in its as to charge Grierson, 96 69 36, doctrine of retreat. State v. N. H. A. 2d 851, Johnson, 854 1949); Ct. Commonwealth v. (Sup.
Pa.
The Trial Court’s and Intoxicants of Narcotics Use asked the prosecutor the selection of During would believed person whether prospective jurors they under the influence a crime while justified committing at however, was offered testimony, or alcohol. No drugs use either drugs the defendant’s the trial with respect nevertheless, intoxicants, charging the court or but remember them, any it did not referred to jury, saying be for if there was it would any, them but testimony about real had a determine the testimony whether the facts in the case submitted. being bearing as the jury this was error inasmuch The defendant urges there was remarks that inferred from the court’s have might use the defendant’s of drugs as to testimony in fact alcohol. had the court procedure have been better judicial
It would initial consider the prosecutor’s not to instructed testimony and alcohol as there no about drugs remarks not think the court’s thereto, but we do in reference offered a reversal. to a requiring were prejudicial degree remarks Manslaughter Murder, Definition The Court’s and Misadventure errors in the court’s charge, these various alleged As to specific sufficient merit requiring them lacking we deem the record that not does only it to say Suffice disposition. rules, our taken as required no objection show what was trial counsel approving reveals expressions what was said in most instances Additionally, charged. our already approved substantially language followed cases. resort other similar of last court Interference with Trial Court’s The Jury Prerogative after two o’clock jury shortly case was submitted *17 p. further 8:45 m. the returned for jury At afternoon. instructions. It retired at 8:50. A again few minutes after the court midnight returned the to the trial jury room and asked if there was a reasonable chance that they might arrive at a verdict. The foreman so,” “I think replied, retired jury for further deliberation.
At 12:57 m. court had the jury brought a. again whether inquired could arrive at a they verdict with further deliberation. The foreman announced: “I am sorry, * * * can’t, we sir We can’t reach a decision.” The court then asked the foreman to tell him in numbers how only was jury divided. The foreman replied jury divided one, eleven to whereupon the court said: “Eleven I one. want back and you go deliberate further connection with this matter.” The returned jury at 1:22 a. m. and announced its verdict of guilty manslaughter.
Ho to the exception court’s utterance or direction was taken, but her new counsel insists the court’s conduct was tantamount to an attempt coerce improperly persuade its jury by invading independence by improper judicial effort.
It was well within the discretion of the trial court to return the for further deliberation despite the fact their they announced inability arrive at a verdict. And in whether to determining so exercise his discretion, the trial could judge properly inquire as to whether or not entertained a predominant view without what it was. disclosing However, to ask the numerical explicit standing jury, as was here, done not to be as sound encouraged judicial procedure. form
This lends specific inquiry easily itself to suggested or and should apparent compulsion be avoided, especially where, here, the trial returned the judge for further after deliberation ascertained that having were they divided eleven to one. Under circumstances present, the absence instructions any cautionary akin closely to unlawful as set Stern, forth In re compulsion 11 N. J. 584 (1953). However, arewe confident that the same difficulty will not and in occur view of the again, disposition made, already *18 478 on this make definitive any ruling for us to unnecessary
is error. assignment a New Trial Grant
The Refusal to after perjury confession of of Doris’ The circumstances was about to be and when sentence concluded the trial was The defense urges recounted. have been already pronounced evidence discovered newly constituted her new testimony a new trial. to warrant was sufficient discovered” “newly feel this evidence did not court 3 The trial court R. R. :7-ll. meaning within would not testimony change that the the opinion also of new trial to be granted. were a result aas that Doris’ credibility at least a possibility There is her virtue of by to some degree be impaired witness might her testi- Then, too, the brother’s credibility recantation. in view of the fact reflected upon also be mony might version, his testimony, instead supporting her present with it. conflict in some respects would an State’s important part witnesses played These two discuss the unnecessary deem it we but presentation, reached already in view of our conclusion in extenso ruling trial is required. that a new to rule unnecessary we find it upon the same reason For other errors assigned. reversed and the cause remanded is below
The judgment trial de novo. for a law, At common reversal). (concurring J.
Heher, not even permitted separate, cases were in criminal jurors accused; and in this country of the consent with the discretion judicial exercise of the dispersal in most of our state statute, jurisdictions limited came 629 53 Am. Jur. et 34 A. R. seq.; L. cases. noncapital 826; R. 1146; 79 A. L. 21 A. L. R. 2d 1140, 1132, 1128, The rule 1107, against separation 1109. 1105, and unbiased verdict an impartial secure intended immune to extraneous and prejudicial And, influences. issue, because of gravity seclusion of the has been deemed of the very substance of a fair trial in capital cases. Commonwealth, 15 Pa. In Ct. (Sup. 1850), Peiffer
Gibson, C. J. said: usages justice; forms and “Even the of the law conduce to *19 law, separation jury capital the common which forbids the of a in a they discharged prisoner, been case before have of the not touches form, matter of matter but of It is substance. not too much to say abolished, culprits that if it were few influential would be con- victed, ones, pursued by powerful prosecutors, that and few friendless escape open prejudice would persuasion conviction. Jurors are as to from men, economy ought as other and neither convenience nor consulted, guard against to be in order to them it. them Let have every compatible duties; comfort with their let them not be exposed might pervert judgment.” to the of who converse those their J., In the words C. of the of the Beasley, sequestering in cases a jury all basic of ancient capital requirement law—“an institute law which is of the English wholly beyond court, the control of which to the citizen as of belongs not, “a of absolute law” which “is in right”; requisition any a the measure, matter in discretion the resting of court.” Cucuel, N. L. State v. J. Ct. 31 249 The Chief (Sup. 1865). Justice continued: acquainted subject deny practice with “No the will this one that
prevailed many ages, me, far for successive and so as is known to departed by any English judicature. it has never been from In by state, epoch of this almost from the its settlement our ancestors by present moment, history, printed as to the we are informed both oral, Prom the same formula has been observed. these admitted then, incontestably plain, it would be that the incidents seem to every possible claim, is invested with be formula itself to considered system part legal which court to a of that this is bound sustain form, of and administer. It not matter unsubstantial but one is by provided law, to the of a verdict the reach result of the means exclusively open in the delivered court founded evidence therefore, presence parties. is, right It as much a of of the the requires, any is which the law immemorial defendant as usage, other act altogether impossible performed trial. It is be at the to pleasure, per- right court, at to the its to waive the admit the of
480 dispensed If the seclusion of the can be formance of this act. court, why dispense charge not it after of the with with before the power respect charge? to the admitted And if the alter one such court, power procedure to is conceded to the what of ancient mode * * * appears be It to forms of the trial can denied? alter admitting antiquity altogether illogical, great the form of community separation from mass of the of of the right capital cases, to abolish to maintain court such admitting right form, of the court at same time without aside, will, all the other circumstances or at essential retain set proceedings go up a trial at But it make law. which enough has claim that this court heretofore laid for us to know practice, power; it has ever conformed its with such no legislative obedience, usages, leaving implicit to the to the ancient modify law, department government so the task to shifting place harmony of human with the ever conditions life.” unanimously In the old Court of Errors and 1932, Appeals seclusion as alike protective reaffirmed the principle J. 110 L. society O'Leary, accused. State N. 36 & A. 1933). (E. law continues force
This ancient common usage constitutional Con- authority. until modified State Constitution, stitution, XI, 3; X, Art. Art. sec. par. *20 cases is juries capital per- 1. The of par. sequestering rule of law to serve the common substantive emptory right justice. and individual who the subject
It was the broached separation, judge sworn, after Immediately not counsel for the accused. being for a escorted from the courtroom “short the were jury recess,” and the of the thereupon inquired prosecutor judge the it was his “intention to ask for death pen- to whether that “with the put the alty,” inquiry thought stating the the jury” “both sequestering prosecutor not possibly make statements as attorney the defense ought the of the The their about feelings sequestering jury.” ask for a verdict that the State would replied prosecutor the degree, the first but would not “demand” murder that, said there demand The no judge being death penalty. me “it that it not the death seems to would be penalty, for he the “would like to hear jury,” but necessary sequester from the defense first on that attorney Counsel question.” “if responded that the State not the does seek death penalty,” could “see he no reason the why should be jury sequestered.” The otherwise; prosecutor thought “the should jury he and the said: “All sequestered” suggested; judge right. That will be the situation at I your request. would certainly not otherwise.” The grant the judge notion that the discretion, one of but he would question not direct of the seclusion if either jury side otherwise. thought indicated, Counsel for the accused then as I read the record, if it discretion, were question accused would be satisfied either way. But reiterated that judge view attitude, prosecutor’s jury should be seques- tered. At the close of the on the testimony following day, after a conference with counsel out of the presence of not jury, incorporated appendix, informed judge that since the State “was not for the death asking” penalty, involved, offense” was not “capital and so there was no need for seclusion of the jury; that counsel for and the prosecutor the accused had “both indicated” they have “no if the objection” would permitted judge sepa- ration of and such jury, would be the order.
Counsel for the accused' should not have been subjected consent, was, to this solicitation of for such it even in the absence of the What assurance jury. could there be that the would not learn of counsel’s refusal of consent to their a fear that would deter insistence separation, upon right. this, Chief Justice Gibson Apropos said the cited case v. Commonwealth: of Peiffer juror charged prisoner “A with a as soon as he has looked oath; upon him and taken the for he cannot be withdrawn. commenced, prisoner trial has and the stands him before as one judges. separate of his In this case were allowed *21 they empannelled True, place after were and sworn. that took prisoner’s consent; right with the but there is reason and sound remark, (1 Chitty’s sense in Chief in Justice Abbott’s Rex v. Wolfe
Rep. 401), ought to that he not be asked to consent. Who dare consent, the in hands
refuse when accommodation of those whose to death, question? or the the of his life are involved in are issues being have the chances of irritation He would to calculate from annoyed hand, tempering the one or of on the other. The law undoubtedly by prisoner’s precedent, a that consent is settled plea discharge previous jury is an answer to a of former the of a discharged, prisoner’s acquittal; life instant a the the power; longer in or if he should be the cause of their is no their protracted confinement, single being the of back value a sent- disarm their his condition would resentment. chance in wretched prisoner, extremity Still, I in of his think no consent of the need, ought him.” to bind 202, 28 110 U. Ct. Utah, And in S. Hopt S. Harlan declared: L. Ed. 262 Justice (1884), liberty. public [the accused’s] has life “The an interest in his lawfully except prescribed by law. taken in the Neither can be mode involving proceedings makes essential That which law dispensed deprivation liberty affected cannot be with or of life or failure, accused, by his when much less mere consent custody, object methods.” on trial unauthorized in the I of error instruction join given conclusion in the first event of a conviction of murder degree, that with the recommendation of life imprisonment.” “it must be to fix the punishment. It is the exclusive province nor of N. J. 2A :113-4. Neither the This, in virtue 8. judge determine this The statute pro- the prosecutor may question. that convicted of vides, terms, person in imperative every suffer death unless the jury in the first “shall degree murder thereof, verdict, and and after part upon its shall by evidence, all life im- recommend the consideration this and no greater punishment which case prisonment, so, And I subscribe to holding cannot imposed.” shall have “could properly charged that court majority under these circumstances it would present the jury that the death would assume, as did the prosecutor, penalty for,” it was asked an undue returned as not qualifica- not be seem, clause that “the tion, concluding would of its to do so stripped right given not be could Legislature.”
Otherwise, I concur in the disposition assignments of error. Oliphant
Mr. Justice concurs in this opinion. Oliphant Heher, JJ., in result. Burling, concurring For reversal—Chief Justice Yandekbilt, and Justices Heher, Oliphant, Wacheneeld, Burling, Jacobs Brennan—7.
For affirmance—None.