On error to Hudson Quarter Sessions.
For the plaintiff in error, Collins & Corbin (Edward A. Markley and John F. Leonard, of counsel).
For the state, Daniel O'Regan, prosecutor of the Pleas, and Frank G. Schlosser and William T. Cahill, assistant prosecutors.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
PARKER, J. The defendant below was convicted on an indictment for receiving stolen goods and brings this writ of error. The case is submitted on briefs, which are voluminous, especially that for the plaintiff in error. The case is before us on strict writ of error and a certificate of the entire record pursuant to section 136 of the Criminal Procedure act. There are eleven assignments of error and thirty-five causes for reversal, which are argued under twelve points in the brief.
The first point made is that there was error in directing a verdict for the state on a special plea of autrefois acquit.
The situation is as follows: There had been a previous trial at which the jury reported a disagreement and were discharged. At that previous trial there had been an amendment of the indictment. The original indictment was for receiving ten rugs of the value of $55 each, knowing them to have been stolen. On the first trial the state's proof indicated that though ten rugs had been stolen, only five had been received. When the state rested, the prosecutor moved an amendment of the indictment to conform to the proof, and this amendment was ordered, apparently without objection then or at any time. It does not seem to be urged even now that there was error in making the amendment, though we prefer not to pass on that point as it is not before us. The case was submitted to the jury on the basis of receiving five rugs instead of ten; and the jury, later reporting that they could not agree, were discharged. This is the basis of the plea of autrefois acquit. The plea seems to intimate that there was a verdict of not guilty as to part of the ten rugs charged in the indictment, but we do not find any indication of this in the case. On the contrary, the only question submitted to the jury after the amendment was whether the defendant was guilty of receiving five rugs as charged by the
amended indictment. In connection with this matter it is intimated that it was error to discharge the jury after they had reported they were unable to agree. But it is elementary that this is a matter discretionary with the court and we find nothing to indicate that that discretion was in any way abused. Coming now to the precise point made under this heading, the case shows that there was a replication to the plea of autrefois acquit, the court empanelled a jury to try it, it was tried by that jury, and the court directed a verdict for the state, negativing the plea. This direction was manifestly proper as there was nothing in the proofs to sustain it. State v. Cooper, 96 N.J.L. 376.
The second point is that "the trial court erred in that an impartial jury was not drawn for the trial of the indictment because the panel of jurors from which said jury was drawn was in the court room and heard the trial of the plea of autrefois acquit wherein the trial court directed a verdict against the defendant."
The substance of the point appears to be this: The jury drawn for the trial on the plea of autrefois acquit was drawn from the general panel, which was present in court. After the disposition of that plea, the question was whether the next jury to be drawn for the general trial of the cause should be selected from the entire general panel or whether the twelve jurors who had already served should be eliminated therefrom before a new jury should be drawn. The case shows that both sides agreed to eliminate these twelve, which was done, and they were sent out of the room. Then the jury was drawn from the remainder of the general panel without objection or challenge because of the exclusion of the first twelve. Plainly, the plaintiff in error is not in a position now to allege error in this regard, because there was no objection at the time, no challenge to the array, and no exception. Under section 136 there need not be an exception but there must be a ruling. State v. Mosley, 102 N.J.L. 94 (at p. 98). The second point is therefore without substance.
The third point reads as follows: "The trial court erroneously refused to grant the defendant's motion for a direction of a verdict of acquittal on ...