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State v. Simmons

Decided: January 26, 1938.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
HARRY SIMMONS, ALIAS INDIAN, AND ALBERT FARIA, PLAINTIFFS IN ERROR



On error to the Essex County Court of Oyer and Terminer.

For the plaintiff in error Harry Simmons, Joseph Kraemer and George D. McLaughlin.

For the plaintiff in error Albert Faria, Simon L. Fisch and Ernest F. Masini.

For the defendant in error, William A. Wachenfeld, prosecutor of the Pleas, and Joseph E. Conlon, assistant prosecutor.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. The defendants below (Harry Simmons, alias Indian, and Albert Faria) were convicted of the crime of murder in the first degree (without recommendation), for the killing of Thomas Ennis, a police officer, while the defendants were perpetrating a robbery at the Hi-Hat Restaurant, in East Orange, and accordingly were sentenced to death.

The defendants did not bring up the entire record of the proceedings had upon the trial, but chose rather only to

assign errors upon their bills of exceptions, and so we are here limited to an examination of alleged errors thus assigned.

The first assignment of error is that the trial judge erroneously overruled the defendants' challenge to "the panel of petit jury, and also to the special panel which is taken from the petit jury panel."

That challenge was an oral one, and in passing we call attention to the fact that such a challenge to the array should be in writing (State v. Dodge, 101 N.J.L. 131), but we see fit to ignore that fact, preferring in this case to examine and consider the oral challenge.

We think it was properly overruled.

The defendants were tried by a jury drawn from a special panel of forty-eight names, which special panel was drawn and delivered to the defendants in accordance with pertinent statutory requirements. This special panel was drawn from the general panel which had been drawn from a list theretofore made by the commissioners of juries, "alphabetically arranged, of persons liable to jury duty, having regard to the just distribution of jury service among those qualified therefor ...


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