The opinion
Dixon, J.
(dissenting). The plaintiff in error having been convicted of murder in the first degree, contends that his constitutional rights were infringed by trying him before a struck jury — that is, a jury drawn from among the persons named on a panel selected by a judge, from, which panel the state and the prisoner had struck an equal number of names.
The constitutional prescriptions are these: “ The right of trial by jury shall remain inviolate,” and “in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury.”
I have been unable to find any reason for thinking that the procedure mentioned runs counter to these constitutional injunctions.
But according to our statute, in eases tried before struck juries, accused persons are entitled to only five peremptory challenges, while at the time of the adoption of our constitution persons accused of certain high crimes, among them murder, were entitled to twenty peremptory challenges. This feature of the statute I deem unconstitutional.
The right of the accused to challenge peremptorily, on being confronted with the proposed juror immediately before the trial, I regard as a very important means of securing to him what the constitution guarantees — an impartial jury. The accused may know of a bias, the grounds of which he cannot prove or dare not disclose, or he may create a bias by an unsuccessful attempt to support a challenge for cause, and in any of these circumstances his sole resort is to a peremptory challenge. The evident utility and -importance of this right, in order to insure the attainment of the constitutional aim— trial by an impartial jury — -justify the conclusion that-, so far as the right existed when the constitution was framed, it is *717 within the guaranty of that instrument. And if the right of peremptory challenge be thus guaranteed at all, the most reasonable and the safest inference is that it is guaranteed to the same extent as it then had.
I am therefore of opinion that a person on trial for any of these high crimes is entitled to twenty peremptory challenges, to be presented when the accused and the proposed juror are brought face to face immediately before the trial.
The present record, however, does not show that this right was denied to the plaintiff in error, for his specific objection was only to a struck jury, and every peremptory challenge interposed by him was allowed. On this ground a reversal of the judgment could scarcely be demanded.
But I think there were, in the charge of the judge to the jury, errors which require reversal.
The undisputed facts established by the evidence were that the prisoner shot and killed Charles Gebhardt, in th'e city of Hoboken ; that Gebhardt was a policeman of the city, and at the time of the homicide was arresting the prisoner withou a warrant. The matters in dispute on the evidence were whether the prisoner had notice that Gebhardt, then in the dress of a private citizen, was a policeman; whether there existed any legal cause for the prisoner’s arrest, and whether, when the prisoner fired the fatal shots, Gebhardt had a pistol aimed at the prisonér, as if about to shoot him.
.Under these circumstances the judge instructed the jury as follows: “If you find that the act of killing Gebhardt was the act of the prisoner at the bar (and of that there is no dispute here; that fact is conceded by the evidence and by the counsel in the trial of the case), the presumption arises, notwithstanding the person slain was an officer of the law and notwithstanding this killing grew out of an attempt to make an arrest — the killing having been established as that of the defendant — that the degree of the offence is murder of the second degree only. That presumption of law existing, the burden is then on the prisoner to mitigate that degree of guilt from murder of the second degree to manslaughter, that *718 burden rests upon him to take the offence away from the effect of the presumption just stated and by evidence reduce the killing to manslaughter. * * * The killing being established, it is murder of the second degree, and if the defendant desires to reduce it to a lower degree of homicide he must establish that by the evidence, in your minds, to your satisfaction.”
The charge further declared as follows: “ The burden of proof of self-defence is upon the prisoner. He must show to the satisfaction of the jury, a situation and circumstances under which the right may be lawfully exercised, and before his defeuce is complete those facts and circumstances must appear to bring the act done by the prisoner within the prescribed limits.”
These instructions, I think, clearly deprived the prisoner of the benefit of the principle that an accused person shall not be convicted of any offence unless his guilt thereof be proved beyond reasonable doubt. For, if the evidence raised in the minds of the jurors reasonable doubt whether the facts existed on which the homicide would be manslaughter only, but did not establish such facts in the minds of the jurors to their satisfaction, then as between murder and manslaughter the jury must, according to these instructions, convict the prisoner of murder; and if the evidence raised in their minds reasonable doubt whether the situation and circumstances were such as made the homicide excusable because committed in self-defence, but did not show such situation and circumstances to the satisfaction of the jury, then as between a conviction of murder and an acquittal on the ground of self-defence, the jury must, according to these instructions, convict. Yet in either of these conditions of proof, the jury would be convicting the prisoner of murder when the whole evidence created in their minds reasonable doubt whether lie was guilty of murder. Such a conviction would be in violation of the fundamental principle of our criminal jurisprudence.
I think it plain that in this case there were, beside the killing, two principal matters, one or the other of which *719 ought to have been established beyond reasonable doubt in the minds of the jury before they could properly convict the prisoner of murder.
One of these matters was that Gebhardt’s attempt to arrest the prisoner was legal. If that was shown beyond reasonable doubt, then the prisoner was proved to be guilty of murder. But certainly the legality of the arrest could not be assumed, and if it was not proved the arrest should, have been treated as any other unlawful interference with personal liberty, as an act which may be lawfully resisted.
The other matter would present itself for consideration, if the evidence failed to prove beyond reasonable doubt the legality of the arrest, and was whether, in resisting the arrest, the prisoner resorted to malicious, wanton or unreasonable violence. Eor, if the' prisoner, in resisting the illegal arrest, was not shown beyond reasonable doubt to have acted maliciously or wantonly or unreasonably, then the homicide was not proved to have been criminal at all; and if he was not thus shown to have acted maliciously or wantonly, then the homicide was not proved to have been murder.
Under the circumstances admitted at this trial, the mere killing did not, as matter of law, establish any criminality in the prisoner, and therefore did not cast upon him the burden of establishing any fact to the satisfaction of the jury, in order to justify his acquittal. On the contrary, he was entitled to an acquittal, notwithstanding the killing, unless, upon the circumstances touching the legality of the arrest, or the maliciousness, wantonness or unreasonableness of the prisoner’s conduct, the jury came to an undoubting conclusion adverse to his claims. The direction to the jury that they should convict the prisoner of murder unless his claims on these points were substantiated to their satisfaction, was in my opinion erroneous.
Although in another part of the charge the jury were told in general terms to give the prisoner the benefit of reasonable doubt, yet in the explicit directions above quoted this general instruction was practically withdrawn as to all contested *720 questions, and the starting point for the deliberation of the jury was declared to be, not a presumption of his innocence, with the burden resting on the state to prove his guilt beyond reasonable doubt,'but an assumption of the prisoner’s guilt of murder, with the burden resting on him to establish to the satisfaction of the jury the illegality of his arrest and such other facts as would mitigate the offence or excuse the homicide.
So intelligible and so definite was the course which tiie learned judge thus marked out for the jury, that I am unable to assure myself that the verdict of the jury does not rest upon this view of their duty, and therefore I conclude that the judgment should be reversed.
In the determination of the cause the following questions were submitted to the court:
1. Is a statute which provides for the trial of criminal offences by a struck instead of a common jury, an infringement upon the constitutional provision “that trial by jury shall remain inviolate?”
Yes — None.
No — The Chancellor, Chief Justice, Depue, Van Syckel, Dixon, Garrison, Gummere, Ludlow, Collins, Nixon, Hendrickson, Adams. 12.
2. Is a provision in such statute, ordering peremptory challenges below the number allowed prior to the adoption of Reconstitution, in violation of the right of a person indicted for a criminal offence, guaranteed by the constitution ?
Yes — The Chief Justice, Dixon, Hendrickson. 3.
No — The Chancellor, Depue, Van Syckel, Garrison, Gummere, Ludlow, Collins, Nixon, Adams. 9.
*721 3. Upon the whole cause shall the judgment of the Oyer and Terminer be affirmed ?
For affirmance — The Chancellor, Chief Justice, Depue, Van S yokel, Garrison, Gummere, Ludlow, Collins, Nixon, Adams. 10.
For reversal — Dixon, Hendrickson. 2.