*1 tion American Casualty that motion to strike the less complaint than cause appearance something because of a merely simultaneous attack the attach- ment. judgment affirmed. accordingly
For Justice and Justices Weintbaub, affirmance—-Chief and Hall—5. Jacobs, Ekancis, Pboctob For reversal—None. JERSEY, PLAINTIFF-RESPONDENT,
THE OF STATE NEW STURDIVANT, v. FRED DEFENDANT-APPELLANT. Argued September 28, Decided November1959. *4 Durkin, Jr., Mr. Thomas E. argued cause for de- fendant-appellant.
Mr. T. Prosecutor, Brendan Essex Byrne, County argued the cause for plaintiff-respondent Jafe, M. (Mr. Sanford Prosecutor, Assistant Legal on brief). opinion court was delivered by C. J. Defendant was convicted for
Weistteaub, sodomy-murder of his stepdaughter, age years. The 4% jury not recommended life having imprisonment, death sentence was imposed.
Three alleged errors are Our urged. examination of the record indicates they are the matters only dis- warranting cussion.
I. :74-2, Pursuant 2A J. S. the court directed the im- aof of 14. The paneling panel was exhausted after selected, had been jurors whereupon the court ordered *5 sheriff “return tales de circumstanlibus forthwith” The fourteenth was chosen from to serve in the case. juror the sheriff’s efforts. produced by those among trial, first On the third of actual day presumably of, defendant moved of the circumstances complained learning had not a mistrial on the Juror No. 14 ground for 2A:74-10 which summoned in accordance with J. S. been reads in part: jurors required “If than remain- more talesmen are the number proper
ing general panel, or officer shall forth- on the the sheriff other among bystanders others, summon, or such additional from jurors persons qualified serve as as be ordered number immediately, court, place and thereof and the names make return jurors box and draw until of the so returned therefrom * * *” jury completed. He motion, the under-sheriff was examined. Upon he, testified that at about 3 :45 3?. by telephone, requested m. companies, including officers of commercial eight large to the sheriff’s telephone company, dispatch employees He informed a com- vice-president telephone office. and if send us “they of the court order asked could pany duty.” ten who be considered for eight people might or The “asked me what kind of case it was vice-president I him a murder trial.” employees told it was Eour that afternoon and 14 more the telephone company appeared all the next The calls from sources day. telephone produced some 35 Of the four prospective jurors. telephone company call, on the went employees responded day who two to the sheriff’s office and were to the courtroom. brought two, one, The 14 was went other of whom Juror No. directly to the courtroom where were found the under-sheriff. they All were named in the formal return to the court’s order. Defendant of course knew were talesmen. they faith the under-sheriff was not good questioned; fact, not, it was the time conceded. factor and Rightly situation presumably territorial suggested technique he used. specific There is no evidence as to how the em- *6 There company. were obtained within the ployees telephone tainted in any way by that were suggestion they The to adjourn said to them. court offered anything fact, in but prejudice defendant to adduce of permit proof we have the limited showing counsel declined to go beyond 14 that Juror No. possessed described. There is no dispute he examined and course of statutory qualifications, before he was chosen to serve. by counsel from departed any The issue is whether the under-sheriff that did, and if he whether principle, judicial legislative, de- invalidates the showing conviction departure scribed above.
A mistrial was in event. inappropriate any motion for Rather the motion should have been remove juror have remained to hear the since a sufficient number would Smith, 95 Cir. 1958), case. See U. S. v. 253 F. 2d (7 1360, L. Ed. 2d 919, certiorari 357 78 Ct. 2 denied U. S. S. Abbott, 362, 2d 303 P. 2d
1364 v. 47 Cal. People (1958); Nonetheless, a death sentence being 730 Ct. (Sup. 1956). 12 us and been one of the who having before Juror No. verdict, returned the we will the merits of the issue. consider It was the the sheriff to select and ancient function of in the writ venire His response summon of jurors facias. 1 Thompson, discretion described as “uncontrolled.” 13, Trials 12. The was attended process by (1889), p. § abuses, of To chiefly packing juries. guard against evil, authorized statute reform courts were English out names and others. State panel by inserting taking v. 76 N. To McCarthy, 1908). J. L. (Sup. end, the same for the provide statutes today generally sessions, lists in the court preparation of of advance of jurors lot, lists and from which panels from which are chosen in indi are chosen lot for service panels jurors again by Such, course, vidual of plan cases. is the overall our statute, with commissioners rather than the sheriff jury with the charged to select for being duty qualified persons J. 2A inclusion the basic lists. N. S. :70-1. jury an affirma for requirement
There
no constitutional
Fay
for the selection of
statutory
jurors,
tive
standard
York,
272, 67
S.
S. Ct.
State
New
U.
People of
1613,
N. J. 2AS. authorizes the court quoted the additional to order sheriff to summon “qualified” per the bystanders complete sons “from or others” to the among Eor limited of thus the box, the jury. purpose filling jury the statute role continues historic sheriff to and return select matter is committed qualified jurors. There his discretion. is no direction as specific to how where in county he shall procure jurors. See State, N. 381, Patterson v. 48 385 Ct. J. L. (Sup. 1886). need not man he v. every He summon meets. State Bouvy, 849, It 124 La. 50 So. 851 Ct. (Sup. 1909). would that he in seem their may “judge [statutory] qualifications instance,” the first but of “ought course not interrogate as to their opinions them or bias.” 1 Trials Thompson, He 27. must not select p. wittingly (1889), partial § jurors or of a v. accept suggestion litigant. Boyles M’Eowen, 3 253 N. J. L. Ct. United 1810); States (Sup.
173
v.
satisfied. United States 706, 174, 61 S. Ct. certiorari denied 311 U. 1940), Cir. S. is so, this strictness, L. 459 In probably 85 Ed. (1940). the statute. But literal compliance and suffices to show will not foreclose inquiry compliance such literal course a fair right of what preceded into the impact impartial jury. and to in expand “bystanders” reason to
There was sound official whose presence prearranged clude persons McDowell, 764, 31 E. 839 123 N. C. S. action. In State such an the court 1898), approved expedient Ct. (Sup. produce it was better calculated to for the reason that than would be recourse to “the professional, impartial houses,” who about the court or who jurymen, hang loafing in to be antici present by parties have been procured “may E. a failure of the at panel.” (31 pation regular S. J. 920. also 50 C. Juries But p. See S. page 840). § out, “how to be they happened present, as McDowell points no fraud or collusion or im provided is no consequence, is “provided, always, action and that no suggested” proper shall appear.” to the And prejudice rights prisoner States, F. 2d 261 1932), Cravens v. United Cir. (8 in 289 U. L. certiorari denied S. S. Ed. in it was held that the statute which satisfied (1933), the marshal are “if returned in court persons present returned,” the court added that “how they when so happened is of no fraud or provided be present, consequence, collusion or action improper suggested.” (At page 270.) in perfectly, The facts Cravens parallel, although quite additional jurors, us. Directed obtain those before to a business house informed the manager marshal went He juror. manager of his to obtain purpose permitted a man absence “would firm whose designate disorganize least,” his another if he right pick did not reserving The court said it like could not manager’s suggestion. * * * “reversible error which way find like vein, out” In page 270). was carried it (at order
175
held
was
also
it
not
error for the
reversible
“necessarily
marshal
to
as
summon
talesmen men who had previously
their names
given
to
marshal or his
as
deputies
being
available for
service”
jury
when there is
evidence the
no
juror
prompted by
motive
It
improper
(at
271).
page
is not clear whether the court
deemed these
be
practices
within
exercise of
marshal’s
or
proper
“discretion”
be harmless
In Klemmer v. Mt.
irregularities.
Penn Gravity
Co.,
R.
163 Pa.
In Howard v. 103 Tex. R. Cr. S. W. Cr. 1926), complained defendant the action (Ct. App. in deputy sheriff from a talesmen list summoning furnished him foreman two railroad Of shops. this the court said: “It is unnecessary for us at this time to discuss this bill we believe it fully, but be might for us to at proper state this time that this should practice be commended, because, while in the instant case the bill does not show such if injury, tolerated, still practice, could result in serious both to the state and injury appellant alike.”
In we light cannot foregoing, say under-sheriff violated any statutory provision principle of law that in his discretion. We think hedges his course was unwise because it invited as to whether some inquiry event may have occurred disqualifying conversations be tween the executives the companies and the employees who And, transmitted call. responded situations, such should did, the court as trial permit, here judge the circumstances. opportunity explore But the mere some untoward event does possibility not suffice dis- *10 176 the final juror judgment. to invalidate
qualify examined for evidence fact is that was juror fully and none appeared. prejudice under-sheriff legally
But if we should hold the record before would be the same erred, the result specific error in its subject application us. The reversible in Meszaros recently the selection of was considered juries Kociolek, Gransamer, 23 N. 179 and State (1957) v. J. v. ex J. 400 different views were 23 N. Although (1957). cases, in those there presented on the facts pressed must be prejudice that a showing common agreement failure to is less than a something made if irregularity devised by the essential elements the scheme with comply Here, there being to assure impartiality. the Legislature the exercise of the sheriff’s discre method for statutory talesmen, cannot said the selection of it be tion in the of a precise defendant the benefit statu under-sheriff denied found, if not Hence the one be is tory irregularitjr, plan. affirmatively absence of circumstances sug in the vitiating Co., 178, v. Sun Oil 109 F. 2d Morgan prejudice. gesting 60 640, certiorari denied 310 U. Ct. Cir. S. S. 1940), 180 (5 50 C. J. Juries (1940); Ed. 1408 S. 1086, 84 L. § 923. ¶. the talesmen urges further were selected
Defendant ato right truly indifference to the constitutional jury United States v. community, citing of the representative Glosser, 60, 85, 62 86 L. 680 U. S. S. Ed. clear. If he means that His not point precise (1942). method for appropriate must be selected talesmen lists, it seems from plain of the basic preparation that cannot obtained the situation talesmen be necessities of Ferraro, See State approach. the same studied Ct. Err. Moreover 1958). A. 2d 478 (Sup. Conn. 35 indi suggest the record nothing there fair cross-section represent did responded viduals who fact, the under-sheriff’s decision to In community. in the business establishments eight large from gather jurors Newark calculated City reasonably to reflect the popu- lation, urban and If suburban. the complaint is that first four returned had a common employer, nothing circumstance is with the incompatible basic objective impartial jury.
II. The second issue relates to the of rebuttal receipt On testimony. case, the State’s John Brady, toxicologist, *11 testified that’ upon microscopic examination he found sperma a tozoa on slide prepared from a rectal smear obtained from the deceased. defense, For the two doctors testified they found no spermatozoa on in the slide in an question exami nation made they during of the trial. progress Both had considerable in experience microscopic examination for in seminal
sperm or vaginal specimens but neither had had experience with rectal rebuttal, smears. In the State re called Mr. Albano, and also Dr. Brady examiner, medical who in the direct case had been confined to the results of a post-mortem examination and Their autopsy. in testimony rebuttal, synthesized for present purposes, effect that they examined the slides after the defense witnesses testified; which sperm Mr. had Brady originally outlined on the slide had bleached because of the effect of stains that a applied; fresh examination of the slides re vealed other spermatozoa; that a microscopic examination is more difficult when the smear is a from contaminated source, rectum; here the that for this reason the microscopic study becomes affair prolonged and the additional sperms were detected after a hours, study four period con in excess siderably of the time expended the defense by experts who testified to negative result.
We see no basis for criticism. The rebuttal testimony was provoked by the defense proof was designed to combat it by difficulties inherent in explaining the exam- ination, relevant particularly because of the area ex- the change to account for experts; the defense
perience it; examined and to Mr. first Brady in the exhibit since on the slide spermatozoa presence show the continued The rebuttal was theretofore marked. beyond portion the exhibit which State attack necessitated and to dis anticipate be reasonably required could not purpose in the assault. There was no advance of prove That extent the with the defendant. to some unfairly deal the State what had been shown on testimony repeated testimony its is basis for of rebuttal rejection direct case is It be added that any which otherwise proper. vested with considerable discretion event a trial judge matters, and his decision will not be dis such accordingly because some with it. State merely disagreement turbed Menke, Beard, 16 N. J. State v. (1954); cf. J. We note the trial also court (1957). surrebuttal opportunity produce offered the defense evidence, was declined. which offer
III. whether remaining the court re- question properly sister, fused to defendant’s Mrs. permit Campbell, testify *12 death, that seven before the date days of she saw her 3%, insert a daughter, age opener can into the and vagina rectum of the Mrs. Campbell deceased. to permitted that on the same occasion the deceased inserted the testify can her own Mrs. opener into rectum. said she Campbell saw bleeding.
We assume the trial as judge permitted testimony to conduct deceased a week before death on the alleged of thesis that the find a to and jury might disposition self-abuse hence infer the fatal were injuries self-inflicted on the of death. day 143, 1 Wigmore, Evidence ed. 579. That (3d 1940), p. § Cf. thesis in was most view of the nature the in- unlikely describe, which we are juries about' to but of course the favorable defendant. But with ruling legally respect to defendant’s to show the alleged participation to effort event and deceased Campbell (the Campbell child not at time during child were together any intervening trial week), the court sustained State’s objection. A course seek may prove defendant of to that another death he is produced the with which It agency charged. seem in to would be sufficient if the principle proof offered has a tendency rational reasonable engender doubt an essential respect to feature of State’s case. Speaking another situation the same involving problem, Wigmore view, expressed 1, Evidence 3d ed. (Vol. 1940), § 573: p. “* * * It true that B’s evidence threats would alone
go proving commission; question far towards B’s but it is not a proof strong probability, only raising absolute nor even of but commission; purpose doubt as to A’s reasonable and for this slightest likelihood of B’s commission or suffice at least assist. threats, sure, may, given instance, The of B’s evidence to be slight considering; too be be worth but it seems unsound as a general threats, evidentiary rule hold mere mere facts of any rejected sort, unaccompanied one are to if be additional facts pointing B towards as the doer.” We think it not enough some hostile prove event and leave its connection with the case to mere conjecture. Some- where in the total circumstances there must be some thread men capable inducing reasonable to regard the event as bearing upon State’s case. The question of relevancy rests in a ultimately sound exercise of discretion. State v. Rogers, 19 N. J. Shiren, State v. (1955); 9 N. J. Wharton, 445 (1952); Criminal Evidence (12th ed. 1955), 290; p. 159, p. 305. § §
There was no suggestion defendant could prove the precise injuries allegedly sustained a week before death then trace a fatal course. only approach we can (cid:127) surmise would be show that what was found on autopsy could be attributable to an unspecified aof kind that injury the object could have inflicted. If that possibility were *13 reasonably present, defendant would have been entitled to it. The trial could not find judge the consider
have the and the death. a fair for a between event basis connection he his We think exercised discretion. properly examiner, Albano, medical the following Dr. the found some all of which his were incurred injuries, opinion There a maximum of 6 8 hours death. time within before bruises, and on the face and chest were abrasions scratches marks on There were five scratch irregular of the child. of the left aspect the buttock. A bruise on the outer right A in- in diameter. -bruise buttock measured about inches buttock, the and measured 6 inches thigh, volving right hip the child re- privates inches. Examination the of by 4 of marked and of the external swelling parts; vealed redness a the a of external large portion rather fresh laceration of the for distance of parts extending vagina into upward an inch; bruising about of marked of the three-quarters “was laceration; hymen wall at and above the the vaginal The lacerated.” uterus was surrounded ruptured, freshly There marked swelling amount of blood. was large the the surrounding and of the crotch and tissues bruising in- dilated about open, anus. The anus was inch being and lace- superficial deep diameter. There were numerous anus, of the mucosa of one measuring rations lining an inch and into the rectum. of three-quarters extending two There was marked rectum for about bruising its anus. There was massive inches above juncture iy2 internal quarts blood) extending hemorrhage (about The de- hemorrhage for seven inches above anus. was and as “fresh.” The external from the scribed bleeding al- rectum itself was add negligible. parenthetically, (We to the pertinent immediate though inquiry, of the deceased and the shorts of defendant panties found stained with blood de- type were to be The witness ceased’s.) vagina opinion a solid, had blunt instrument. penetrated by rectum been for a rectum evident distance penetration of two inches and the blood resulting bruising ruptured *14 beyond vessels the of rectum, the the massive lining causing internal above, hemorrhage described which turn induced shock, the immediate cause of death.
Upon cross-examination, counsel for defendant scarcely touched the time estimate. which Beyond sweeping question called for blanket of merely reiteration the direct testi- mony, counsel the explored time factor with only specific to reference the of inch the anus three-quarter laceration and rectum. He asked "What was there about that lacera- tion that leads you believe that it was inflicted six hours eight prior death,” to which Dr. Albano replied "There awas freshness about it. There were no marks of I raw, could see. The healing were the edges color was red, there was no the color of tissues.” fading We add the laceration specific referred to was the just not source of the fatal which, above, as stated was hemorrhage, the caused rupture vessels the beyond lining rectum.
Hence Dr. cross-examination of Albano did not ques- tion his estimate of the time fatal injury. Nor before, he asked an whether inflicted a injury week could have accounted for post-mortem Nor did findings. defendant offer any medical evidence either Dr. challenging Albano’s or testimony that an suggesting injury antedating the six to hour eight could have period played In role. short, there was of a nothing suggest possibility slow or of a hemorrhage fresh one somehow precipitated by old injury.
Thus as the record stood at time of the proffer Mrs. Campbell’s testimony, there was nothing connect the incident with alleged the death. Defendant did repre- not sent that other would proof supply the link. In fact trial court to elicit such a sought representation from the defense but of that nothing character from the emerged colloquy.
At oral us, argument before counsel for defendant his suggested sole source of possible support would be Dr. to his examination testified Byrne. Byrne respect Dr. with and also with slide, above, of the rectal as recounted in II issue. matter the immediate to another unrelated to respect Byrne respect But Dr. questioned significantly interpretation Albano’s injuries to the age Dr. short, Dr. Albano’s critical In post-mortem findings. Dr. failure to examine testimony stood unchallenged. *15 area in terms of the exclu- in this cannot be Byrne explained was injury The time testimony. sion of Mrs. Campbell’s reason that defendant a vital case for the State’s part period. child that during was shown to have been were or could have injuries Hence that the fatal any evidence on the vitally would bear period been inflicted before that would have incumbent upon issue of It been guilt. another agency defendant or even to prove suggest to mount that attack the State’s case. upon order injury that additionally Byrne It Dr. called significant Mrs. took the stand. Campbell defendant before we with the trial court that circumstances, In these agree a infer rational basis which could there event was connected alleged a that the possibility reasonable State, v. 163 of deceased. Edmonds with the death Cf. 323, 2d 153 1956). Neb. 79 W. Ct. (Sup. N. affirmed. accordingly judgment reverse for reason I would J. (dissenting). Pboctob, defendant was not which found the guilty that the jury N. 2A :74r-10 demands constituted tribunal. J. S. properly are “the sheriff or talesmen required when additional that summon, among shall forthwith from other officer proper number persons or such additional others, the bystanders court, as ordered as be jurors to serve qualified ** this case under-sherifE assumed *.” In the present he had a certain measure fulfillment it and in the duty, However, delegate he had no authority of discretion. discretion to a stranger. exercise
183 generally, universally, prevailing “[T]he if not rule such is that duty selecting persons grand petit jurors as as act performed by persons appointed selection, must be to make the delegated by be cannot them to another or others. State v. Newhouse, 824; Gravity 29 La. Ann. Klemmer v. Mount Penn Hulse v. Co., 521, 274; 421; State, R. R. 163 Pa. A. 30 35 Ohio St. Graddy, 223; State, (Ky.) Commomoealth v. 4 Metc. Clare 30 163; Cyc. 212; 1016, Md. 24 12 R. C. L. Dunn v. 1017.” United States, page (5 1917). 238 P. at 511 Cir. States, See also Glasser v. United S. U. S. Ed. 680 224 F. (1941); L. United States v. Murphy, C. N. D. Y. (D. 1915).
In the
ease the
present
permitted
stranger
under-sheriff
to select and dispatch
jurors
two
to the court
prospective
room.
Juror number 14 was
of these and was subse
one
chosen as
quently
one of the 12
who
jurors
passed upon
the defendant’s guilt. The under-sheriff testified that
first time he saw these two
was when
prospective jurors
they
were seated
in the courtroom. He
among
spectators
further testified that he did not recall
conversa
having any
tion with
Indeed,
either of them.
he
remember
did not
*16
whether he ascertained their
from
or obtained
identity
them
their names when they
them to the clerk. Can it be
gave
said that the under-sheriff
any authority
retained
exercised
of ultimate selection of the
jurors?
Cravens
prospective
Cf.
States,
v. United
The statute i. that speaks imperative the under- sheriff “shall forthwith summon” prospective jurors. The obvious of the word “summon” in the of meaning context it does Surely is to in court. compel appearance
the statute or, invite, as in the the under-sheriff may not mean that reasons invite, who for case, ask a to persons present stranger of a murder trial. jury to serve a of their own wish J. 24. :74-10 by S. I believe the under-sheriff violated an unauthorized his to exercise of discretion delegating on number 14 juror And since person. presence a result, that was not jury it follows jury the defendant’s tribunal to determine constituted properly guilt. to actual preju
The defendant should not be show required Kociolek, J. special 23 N. (1957), In State dice. in a case was drawn from jurors capital panel forty-eight This court held the less whole general panel. than the and, 2A :74-9 in violation N. J. S. with to be procedure reversed con showing prejudice, judgment out any The court said: viction. necessary prejudice; enough to actual it is is show “It not commanded; Legislature has all shown so that need he is * ** jury was not constituted accordance the statute. established, question proper not is whether a tribunal ‘The ” fairly.’ Id., improperly established tribunal acted
whether page N. J. at 409. of N. The same violation J. S. reasoning applies Kociolek, :74-10, this court in 23 N. J. at page 2A which J. 2A companion be a of N. S. :7A-9. provision recognized at the heart very constituted right legally law. of that abridgment right of our criminal To tolerate be shown is effectively destroy unless actual can prejudice is in it, since the defendant’s burden of showing prejudice Moreover, heavy. scrupu the nature of things unreasonably of the statute neces lous adherence requirements defendants, criminal in the interest sary, only but *17 provide also in fulfillment of the State’s responsibility It seems to me that the impartial juries. trial fair and by one of destroys unauthorized persons selection of jurors elements “the essential scheme what the calls majority insure impartiality.” Legislature devised the under- that the course taken by admits majority as to whether “unwise because it invited inquiry sherifi was have before juror some event occurred” disqualifying mind my a member of the To panel. number 14 was made than course action was more unwise— the under-sheriffs might of outside influences which possibility it created de- interfere with a fair and trial for both the impartial fendant and the State. I believe that the of such presence harm is and its inherent for sufficient possibility capacity a reversal. to require am in
As to the matters decided I accord complete other with the majority. and Justices Weintraub,
For Justice affirmance—Chief and Schettino—6. Burling, Jacobs, Francis, Hall For reversal—Justice Proctor—1.