State v. Kociolek

Vanderbilt, C. J.

(dissenting in part). The majority opinion reverses the conviction below, among other reasons, for want of technical, but not substantial, compliance with certain provisions of N. J. S. 2A :74-9 and 10, in drawing the jury in a murder case. The majority deems it fatal that the sheriff failed to draw from the general panel a list of at least 48 jurors “or such larger number as is directed by special order of the court.” A list of 48 jurors is obviously carried over from earlier and simpler days; in these days it is not a realistic number from which to draw a jury for a murder case where 20 peremptory challenges are allowed the defendant and 12 are allowed to the State, N. J. S. 2A :78 — 7. Special orders for additional jurors in considerable numbers are common; thus in State v. Mohr, 99 N. J. L. 124 (E. & A. 1923), the original order was for 60 jurors and a week later there was another order for 120 more.

In the case at bar, instead of the sheriff drawing a list of 48, the defendant was served with a list of 75 jurors drawn from the general panel. It is important to note the care with which the general panel in every county is now chosen. The two jury commissioners in each county, appointed by the Supreme Court on a bipartisan basis, N. J. S. 2A :68-l, select the names for the petit jury list for each *424 stated session in the Superior Court and deliver it to the assignment judge at least 40 days before the stated session, N. J. 8. 2A :70 — 1. In preparing the jury list not only must the jury commissioners make use of a detailed uniform questionnaire prepared by the Supreme Court and send it to each prospective juror, B. B. 1:29-2 and N. J. 8. 2A :70-5, but at least 35 days before each stated session the jury list is “closely” checked by the assignment judge and the county judges and the jury commissioners “for the purpose of removing from such lists the names of such persons as may, in their opinion, be unfitted for jury service. The assignment judge may, in his discretion, strike from such lists the name of any person,” N. J. 8. 2A :70-2.

Then, not more than 15 days before each stated session, the jury commissioners submit uniform metal or plastic pieces bearing numbers corresponding to the numbers of the persons on the jury list to the assignment judge, or a judge designated by him, who examines the pieces and if they are found correct returns them to the jury commissioners, who thereupon deposit them in the jury box, N. J. 8. 2A :71-1. The box is then “shaken so as to mix thoroughly the pieces therein,” and in the presence of the designated judge the names are drawn singly from the box and the name, occupation and place of abode of each juror is publicly announced. N. J. 8. 2A :71-2. This process of selecting jury panels is a far cry from the drawing of jurors by a sheriff in the days when N. J. 8. 2A :74-9 and 10, the statute now before us, was first enacted.

It is difficult to see, under this practice, how the drawing of 48 or more names by the sheriff from the general panel in the presence of the county judge or the clerk adds anything to the protection of the defendant in addition to the safeguards providing for the drawing of petit jury panels under the statutes and rules herein cited. In fact, the safeguards provided by these modern statutes and rules reduce the requirement of the sheriff drawing a jury of 48 or more to a mere ministerial level. It is as outmoded as the use of “persons of the body of his county” (i. e., talesmen) *425 commanded by the same section of the statute, N. J. 8. 2A :74-9. Yet the majority deems the drawing of the jury by the sheriff and the service on the defendant as mandatory, indeed, as jurisdictional, and for lack thereof it reverses. The majority takes this view in spite of the fact that in case after case the courts, in construing this obscure and troublesome statute, have held that its purpose is to give the defendant an effective right of challenge with respect to a jury panel of limited number rather than a strict compliance with the technical provisions of an inartistically drawn and outmoded statute. In considering the cases it should be noted that under R. R. 3:7-2 (a) the defendant is required to be served — and in this case he was served— at least three days before the trial with a list of jurors to be used at the trial. Thus we find in Patterson v. State, 48 N. J. L. 381, at page 384 (Sup. Ct. 1886), the contention that all of the jury must be present at the commencement of the trial swept away:

“If it is necessary that every juror of the 48 summoned for service at the term should be present in court when a case is called for trial, it would be quite impossible to conduct the prosecution of criminal trials successfully.”

and at page 383 of 48 N. J. L. the reason for the modern approach in statutory construction is clearly stated:

“In the early days of English criminal jurisprudence, when even a trifling larceny was punishable with death, there was reason why the judicial mind should exhaust its ingenuity in aid of the defense, and seize upon every technicality to avert from the prisoner a punishment so disproportionate to his crime. * * * The reason for resorting to mere technicality to enable the criminal to evade the sanctions of the law no longer exists, and the practice to which that reason led should therefore cease.”

The Patterson case was cited and approved by the Court of Errors and Appeals in Brown v. State, 62 N. J. L. 666, at page 691 (1898), where 11 jurors were not found, two were unable to attend by reason of illness and three were absent without excuse, and in State v. Martin, 94 N. J. L. *426 139 (1919) where 16 jurors failed to answer when, their names were drawn. See also State v. Mohr, 99 N. J. L. 124, at 126 (E. & A. 1923) supra, where Chief Justice Gummere stated succinctly the object of the statute under review:

“Its primary purpose is to protect the interests both of the defendant and of the state by providing a panel of jurors sufficient in number to afford each party the opportunity of exercising the right of challenge to its fullest extent, without being compelled to resort to talesmen by reason of the exhausting of the panel; and it should be so construed as to effectuate that purpose.”

The same holding is reiterated in State v. Cioffe, 128 N. J. L. 342 (Sup. Ct. 1942), affirmed on the point here made on the opinion below in 130 N. J. L. 160 (E. & A. 1943), the court adding

“In this case it is not claimed that plaintiffs in error were prejudiced in any way.”

In the case before us it must be remembered that the defendant did not exhaust his peremptory challenges on the jury list of 75 which was furnished him in advance of trial pursuant to R. R. 3:7-2(a). To the same effect is State v. Simmons, 120 N. J. L. 85, 88 (E. & A. 1938), where the court said with respect to a challenge at the drawing of the special panel in a murder case:

“We therefore think there was no irregularity in the present ease, but, even if there was, the general rule is that statutory provisions respecting the preparation of lists and the drawing of the panel are regarded as directory only, and that irregularities therein are no ground of challenge, unless they are such as plainly operated to prejudice the challenging party.”

The majority opinion relies on State v. Lapp, 84 N. J. L. 19 (Sup. Ct. 1913) and State v. Rombolo, 89 N. J. L. 565 (E. & A. 1916). The Lapp ease does not concern the present statute, the charge there being for grand larceny, but in any event both cases are clearly correct. In each *427 case the sheriff failed to put into the box all of the names available to him under the appropriate statute in each case, but instead of so doing proceeded in one case to the general panel and in the other case to talesmen. These two decisions are grounded in the principle that the intent and purpose of the statutes governing jury selection is to secure for the accused a fair and impartial trial and afford him, and the State as well, an opportunity of adequate inquiry into the qualifications of those who will sit in judgment. In each of these cases the conduct complained of was clearly violative of this purpose and prejudicial to the defendants, a fact which does not exist in the instant case.

The majority also relies on State v. Tomassi, 75 N. J. L. 739, at page 743 (E. & A. 1908), where it was stated:

“Manifestly the formality of drawing the list of 48 jurors to be served upon the defendant is required only when the general panel consists of more than that number, the drawing being intended for the purpose of selecting 48 names out of a greater number. Where the general panel consists of more than 48, the drawing is essential. * * * where the general panel consists of 48, and has not been reduced, the statute does not require the idle form of putting the 48 names into a box for the mere purpose of drawing out the same names.”

But if the drawing of a list by the sheriff of 48 names (or more, if the court so orders) is mandatory or jurisdictional and therefore may not be waived as the majority opinion asserts now, in the absence of statutory authority — and there is none — may it be waived in cases of general panels of 48 ? Does the Tomassi case not demonstrate that the requirement is really not mandatory or jurisdictional, but simply, as the cases quoted prove, one designed to give the defendant an opportunity to investigate adequately his prospective jurors? And do not the steps which are now taken in the choice of a general panel demonstrate that he is given that very opportunity? What was done in the case at bar in nowise derogated from a fair and impartial trial to the defendant. On the contrary, he was given every substantial safeguard. As a practical matter, 48 jurors is not a sufficient number *428 in most murder cases to furnish a trial jury of 14. A list of 75 is much more realistic than a list of 48. If 48 is not sufficient and 75 is more realistic, the course pursued here gave the defendant an opportunity which he would not have had under a list of 48 to make a thorough investigation of the more realistic number of jurors. Barring a showing of prejudice or a possibility of prejudice stressed in the Gioffe case and the Simmons case, supra, we ought not to condemn the practice followed. Thus, for example, if the same jury had been repeatedly used in murder cases, there might be a possibility of asserting prejudice, but the instant case was the first case in which the panel of 75 had ever been called on to do jury service. In such circumstances no prejudice could possibly exist.

One of the great objectives of modern procedure is to make it a means to an end rather than an end in itself. Every time a statute or a rule is construed to be mandatory or jurisdictional we are in danger of promoting technicalities at the expense of substantial justice. The latest instance of the application of this principle to civil cases was in the recent opinion of this court in Meszaros v. Gransamer, 23 N. J. 179 (1957). The principle is quite as important in the administration of criminal justice as it is in civil cases.

The difficulties involved in the drawing of jury panels in Atlantic County are unique because Atlantic County is the only county in which the courts sit in two different places — in Mays Landing for criminal cases and in Atlantic City for civil cases. The two places are 20 miles apart. Manifestly, the same panel cannot sit in both places at the same time. The present case suggests the necessity of an administrative study of the entire problem of jury assignments in Atlantic County, but no possible difficulties that may be suggested have any bearing on the jury assigned to criminal work in Atlantic County with respect to its first case of jury duty on a murder indictment.

I would not reverse the judgment below on the first ground assigned in the opinion of the majority.

*429 Mr. Justice Wacheneeld and Mr. Justice Jacobs have authorized me to indicate that they join with me in this dissent.

Vanderbilt, C. J., and Wachenfeld and Jacobs, JJ., concurring in result.

For reversal — Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub — 7.

For affirmance — None.