On writ of error to the Essex Oyer and Terminer.
For the plaintiffs in error, John W. McGeehan, Jr., and Charles Becker.
For the defendant in error, Joseph L. Smith, prosecutor of the pleas, and Simon L. Fisch, assistant prosecutor of the pleas.
The opinion of the court was delivered by
LLOYD, J. The plaintiffs in error were convicted of murder in the first degree without recommendation of life imprisonment and sentenced to death, and the case is before us for review, both on bills of exception and on specifications of causes for reversal on the entire record under the one hundred and thirty-sixth section of the Criminal Procedure act.
The first reason urged for reversal is that the court erred in overruling the challenge to the array of the panel of jurors from which the trial jurors were drawn. The challenge
was based on the fact that all of the names of the general panel of jurors were not in the box at the time the drawing took place. What occurred was this: The forty-eight names comprising the special panel of jurors were drawn from the general panel. When this special panel was exhausted the sheriff proceeded to draw from another box containing only a portion of the remaining names of the general panel, the jurors for the term having been divided into two separate panels in accordance with chapter 296 of the laws of 1927, and the names being drawn from one of the boxes containing the names as thus divided. When this box was exhausted the drawing continued from another box containing the names of the remainder of the general panel, and at this point counsel for the defendants interposed the challenge to the array.
Assuming, as contended by the plaintiffs in error, that the act of 1927 applies only to the trial of civil cases, we deem it quite clear that the defendants were in nowise "prejudiced in maintaining their defense upon the merits." All of the names were those of potential jurors and presumably qualified to serve. That some of those thus qualified were not in the box at the time could by no possibility prejudice the defendants. There was afforded every opportunity to secure impartial triers, and no reason is suggested to indicate that these were not obtained. That the jurors chosen were satisfactory to the defendants is apparent from the fact that the peremptory challenges available to them were never exhausted. Harmless irregularities, even errors, cannot be availed of to defeat the results of a fair trial. Such is the declaration of legislative authority in the one hundred and thirty-sixth section (supra), and this court will be appealed to in vain to defeat the ends of justice by such means. As was said by Mr. Justice Van Syckel nearly half a century ago in Patterson v. State, 48 N.J.L. 381, 383, "the reason for resorting to mere technicality to enable the criminal to evade the sanction of the law" (viz., extreme penalties in disproportion to the offenses) "no longer exists, and the practice to which that reason led should therefore cease. Men who make their lives a
scourge to society must answer its violated laws, and can justly demand, in a judicial tribunal, nothing except a fair trial according to the laws of the land, in which no substantial right is denied them."
Our conclusion is that the defendants at the trial were not prejudiced by the manner of selecting the jury.
It is next argued as a reason for reversal that the court erroneously permitted the prosecutor, over objection, to question jurors on their voir dire without any challenge being first interposed. Counsel for the plaintiffs in error concede that they themselves examined jurors without challenge, but contend that this was not a waiver or acquiescence in the practice. From the record it appears that a juror was called and the clerk was about to swear him on his voir dire when counsel for the defendants objected, the prosecutor having previously requested that all of the jurors be so sworn in a body rather than individually. The objection was overruled and the juror sworn. It will thus be seen that no challenge to the favor had been interposed and ...