On appeal from the Supreme Court, whose opinion is reported in 122 N.J.L. 108; 4 A.2d 15.
For the appellant, Isserman, Isserman & Kapelsohn (Vito Marcantonio, of the New York bar), (Abraham J. Isserman, of counsel).
For the state, Daniel O'Regan and Atwood C. Wolf.
The opinion of the court was delivered by
PERSKIE, J. Appellant, John R. Longo, seeks to review the order of the Supreme Court which denied his application for a writ of certiorari to review an order allegedly entered in the Hudson County Court of Quarter Sessions which in turn denied his application to that court for a new trial on the alleged ground of newly discovered evidence.
At the outset, we desire to make certain observations concerning the record as submitted. No copy of the order allegedly entered in the Hudson County Court of Quarter Sessions is made to appear; the copy of the order submitted (Schedule C, page 51, S.C.) is captioned in the Hudson County Court of Common Pleas; that court has no criminal jurisdiction. R.S. 2:6-6. But since the parties have treated the order as if in fact it had been entered in the Hudson County Court of Quarter Sessions, we shall so regard it. The record is, however, otherwise fatally defective; it contains no transcript of the proofs which were adduced upon the examination of the jurors upon their voir dire although these proofs are necessarily determinative of the propriety of the challenged order made by the trial judge. But be that as it may, we proceed with our consideration and disposition of this cause upon the record as submitted by the parties.
From the record so submitted, from the affirmance of appellant's conviction (more as to this later), we piece together, as best we can, the facts upon which appellant asserts that the denial of his application for a new trial, the denial of a writ of certiorari to review that denial, constitute an abuse of discretion on the part of both courts and ergo the denials are tantamount to an invasion of his fundamental rights to a trial by an impartial jury both under the Federal and State Constitutions.
Epitomizing the facts so gathered, we learn that the Hudson County Grand Jury (December term, 1937) returned an indictment (No. 109) against appellant charging him with the violation of the provisions of R.S. 19:34-2, in that he
filed a Democratic party primary nominating petition knowing that the same was falsely made, &c. (Source, section 434, chapter 187, Pamph. L. 1930, p. 878.)
In due season, April 8th, 1938, the sheriff and jury commissioner of Hudson county drew two hundred and four names from the master panel of one thousand two hundred and twenty-four names of prospective jurors for the April, 1938, term of court. The two hundred and four so chosen were to serve in the several courts of the county for a two-week period during the stated term, beginning on April 19th, 1938. Pursuant to order of court, the first one hundred and two jurors of the two hundred and four jurors drawn were to serve in the criminal courts and the remaining one hundred and two were to serve in the civil courts. The list of the names so drawn was promptly filed in the county clerk's office and available to appellant, and all others in interest. Thus appellant and his counsel were afforded every opportunity before trial to make inquiry and gain information which they required for the purpose of making peremptory challenges and challenges for cause. (Cf. Clifford v. State, 61 N.J.L. 217, 223; 39 A. 721; State v. Palmieri, 93 N.J.L. 195, 199; 107 A. 407.)
At the outset of the trial, which commenced on April 27th, 1938, at the Hudson County Court of Quarter Sessions, appellant interposed a general challenge against all prospective jurors on the ground of bias and prejudice. Notwithstanding the general ground of the challenge, the trial judge allowed counsel for appellant to examine each juror on his voir dire. That testimony is not before us. We do, however, know that the trial judge correctly held that counsel for appellant improperly asked each juror whether (a) he participated in the last primary election, and (b) whether he was a member of any political organization. See State v. Longo, 121 N.J.L. 427; 3 A.2d 127. We also know that there is nothing in the record as submitted to indicate any dissatisfaction with the personnel of the jury as finally selected.
Appellant's trial ended on May 7th, 1938. He was found guilty as charged and has since served the sentence of nine months ...