On error to Essex Oyer and Terminer.
For the plaintiff in error, Isidore Kalisch.
For the state, William A. Wachenfeld, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor.
The opinion of the court was delivered by
PARKER, J. This is a writ of error to a conviction of murder in the first degree without recommendation of life imprisonment.
A number of points are made for reversal, but we find it unnecessary to decide at this time any but the first, which, in our judgment, points clearly to harmful error committed by the trial court.
Defendant is a negro. Before the jury was selected from the special panel of forty-eight, provided by law to be selected from the general panel (Criminal Procedure act, section 82, Comp. Stat., p. 1847) defendant challenged the array, in writing, "because those charged by the State of New Jersey and county of Essex with the duty of drawing such panel
deliberately avoided calling any persons of the colored race knowing that the defendant was colored and because of bias and prejudice against such defendant and this challenge to the array this defendant demands that the court try."
This challenge was peremptorily denied by the court, and exception duly prayed and sealed.
This denial was error. In State v. James, 96 N.J.L. 132 (at p. 143), the late Chancellor Walker, speaking for this court, remarked obiter: "It was long ago held that where colored men were not summoned and returned on jury panels, members of that race could raise the objection that they were discriminated against." See, also State v. . McCarthy, 76 Id. 295, 298. It is settled in the Supreme Court of the United States, the final authority in matters of this kind, that "whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the fourteenth amendment of the constitution of the United States." Norris v. Alabama, 55 Sup. Ct. Rep. 579; 79 L. Ed. 598, quoting Carter v. Texas, 177 U.S. 442, and citing other cases. As the trial court in the present case refused to make any inquiry into the allegations of fact set up in the challenge, it must be assumed for present purposes that they would have been substantiated if tried or at the very least, the defendant was deprived of his right to produce evidence to substantiate them.
The foregoing, as premised, suffices for a reversal: but as the case must be retried, some comment on the other phases of the case may well be in order. And first, of certain inconsistent rulings of the court in respect to defendant's demand of particulars. The indictment was in the common statutory form, which in itself specifies little or nothing, merely alleging that defendant, on, &c., at, &c., in the county of Essex did willfully, feloniously and of his malice ...