State v. Rosenthal

89 A. 1045, 85 N.J.L. 564, 1914 N.J. Sup. Ct. LEXIS 98

• Court: Supreme Court of New Jersey
• Decided: February 25, 1914
• Status: Published

Opinion

The opinion of the court was delivered by

Kalisch, J.

The plaintiff in error was convicted, in the Essex Quarter Sessions, for maintaining a disorderly house in Newark. The first point urged by his counsel in the brief is that under section 76 of the Criminal Procedure act (Comp. Stat., p. 1845) the court was required to select from the persons qualified to serve as jurors in the county where the indictment was found sixty names, with the places of their abode, from which the prosecutor and defendant shall each strike twelve names and the remaining thirty-six shall be placed in the box and from the names so placed the jury shall be drawn, and that these requirements were not rigidly adhered to, in that in the list of names to serve as struck jurors, served on defendant, the name of one John N. Wittpen was given as John N. Wittgren, and his place of abode at No. 619 Highland avenue, Newark, whereas he resided at No. 222 Grafton avenue, Newark, and the place of abode of one John Sutton was given as at No. 16 James street, Newark, whereas he resided at 136 Third avenue, Newark, and also that one of the names was that of a person deceased. No objection was made to the list at the time the jury was struck. Counsel of the state and of the defendant appeared before the judge and each struck off twelve names. The proper time to have made objections to the list of names as served was at the time when the jury was struck. It is argued that the plaintiff in error was deprived of a right, but of what right has not been made clear to us. For it appears that at the trial after the plainti ff in error had exhausted his challenges, he was permitted by the court, with consent of counsel of the state, to challenge for cause both jurors who had been wrongly described in the list. We are unable, therefore, to perceive in what manner the plaintiff was injured by the misdescription of the two jurors. From an examination of the jurors, on the challenge for cause, it appeared that they had formerly lived at the addresses given in the list, and therefore there is good reason for the belief that if the plaintiff in error had made proper inquiries he could readily have ascertained their true places of residence. By requiring the place of abode to be given, it was evidently the intention of the legislature to give the parties to a litigation, whether criminal or civil, an opportunity to explore the quality and character of the men selected, and to know from what neighborhood they are summoned. It was not made to appear that the plaintiff in error was in anywise misled by the wrong addresses of the two jurors, together with the misspelling of the name of one of them, as to who were intended, and therefore he reaped more than he was entitled to when his challenges for cause were allowed.

Whether or not the statute is complied with by stating in the list of names served as the places of abode to simpty give the city or township, without designating street and number, is not before us. Nor does the circumstance that the list contained the name. of a dead person vitiate it. What the plaintiff in error was entitled to was a trial by an impartial jury, and this could not be affected by the fact that one or more of the persons contained in the list was or were dead so long as there was a sufficient number left from which an impartial jury could be drawn. In State v. Brown, 33 Vroom 666, eleven of the jurors on the struck panel were returned not found, two were prevented from attending by reason of illness and three were absent. A motion to quash the panel by defendant’s counsel was denied. On p. 691, Mr. Justice Depue said: “It is not within the power of the sheriff in summoning the jury to .deprive the parties of the mode of trial prescribed by the statute, nor is it necessary that the whole number of jurors specified in the panel should be present when the ease is called for trial.” •

The objection to the panel was properly overruled.

The only other ground relied on by the plaintiff in error in the brief is stated to be that the court in charging the juiy clearly indicated the condition of his mind with reference to the innocence or guilt of the defendant. That the court in the charge gave the impression of a presumption of guilt.

This states no legal ground for the reversal of the judgment. The part of the charge aimed at by counsel of plaintiff in error is in the nature of strictures on the negligent conduct of landlords, generally, in letting houses to questionable tenants, and on the laxity of public officials who have authority to suppress disorderly houses and fail to do so. This digression of the judge from the issue being tried was not in violation of any rule of law. He had prior thereto told the jury that if the acts complained of did not occur, or if the defendant did not control the place, nor liave the power to control it, nor did not, having the power to prevent it, permit the acts complained of, they should acquit the defendant. He also told the jury that the defendant was presumed to he innocent until he was proven guilty beyond a reasonable doubt.

Finding no error in either of the two points presented by the plaintiff in error the judgment will be affirmed.