For the defendant in error, John J. Quinn, Prosecutor of the Pleas in the County of Monmouth.
For the plaintiffs in error, Edward F. Juska.
Before Brogan, Chief Justice, and Justice Heher.
BROGAN, CHIEF JUSTICE. The plaintiffs in error, Alfred F. Duggan and Nicholas A. Cioffe, were convicted of robbery in the Monmouth County Quarter Sessions and jail sentence was imposed upon each. The indictment charged that the defendants held up and robbed two bank messengers, Joseph Sturm and J. Clarence Barton, of a sum of money ($108,000) at the City of Asbury Park, New Jersey, on the morning of July 30th, 1940.
The assignments of error and specification of causes for reversal (eighty-three in number) are argued under nineteen headings. The case was submitted on brief. The points made will be considered in the order in which the brief presents them.
The state called witnesses at the trial, whose testimony tended to establish that in the month of July, 1940, the plaintiff in error, Duggan, and one Martin Deevy occupied a bungalow at Navesink in the County of Monmouth, which they rented from its owner, J. Harry Purvis, for the summer months. The plaintiff in error, Cioffe, is not revealed as having lived at the bungalow or even having visited it any time. The robbery took place at approximately eleven o'clock in the morning on July 30th, 1940. The bank messengers at that time were engaged in transferring the money in their custody from the Asbury Park National Bank to the United States post office building for shipment via American Express Company; the bank messengers used an automobile for that purpose and, having parked the car in front of the post office, were in the act of carrying the money from the car to the post office building when they were held up, at the point of a revolver, and robbed. The hold-up men then proceeded to an automobile, stationed across the way, and drove off. Cioffe was identified as the robber who had carried the revolver at the time of the hold-up. Duggan, observed by one witness leaving the scene of the crime in the car driven by Cioffe, was later identified by the witness in a jail in Jersey City, New Jersey, where he was a prisoner. The automobile, used for the escape from the scene of the robbery, was later found near
Bound Brook, New Jersey, abandoned. It contained certain articles which were identified as having been used or worn by Cioffe at the time the crime was committed -- sun-glasses and gloves -- and also the bags which had contained the money intended for shipment.
The defense offered for each defendant was alibi. Cioffe said and produced testimony to support his statement that on the morning of July 30th, 1940, he was in Essex County, New Jersey, working for his father-in-law; and Duggan contended and produced witnesses to prove that he spent the greater part of the day, on which the crime was committed, on the beach at Seabright, New Jersey, in the company of his friend, Martin Deevy, and a Miss Simpson.
The main assignments of error challenge the court's jurisdiction, in that the jury was not "lawfully constituted;" set up the plea autrefois acquit, in that in the United States District Court these defendants were acquitted on the trial of an indictment for the same offense; and assert alleged errors in the course of the trial in the rulings of the trial judge on matters of evidence and in sundry other particulars.
The brief for the plaintiffs in error presents argument as though this proceeding on writ of error was under the one hundred and thirty-sixth section of the Criminal Procedure Act (R.S. 2:195-16). But it is not. We find no certificate of the trial judge authenticating the record of the proceedings had upon the trial. The trial judge made return to the writ of error which issued out of this court and certified to us "the record and proceedings whereof mention" is made in the writ. This is merely a formal return and does not comprehend the entire record but only those matters referred to in the writ and those, of course, include only matters to which proper objection and exception were made and noted and which were signed and sealed by the trial judge. Since the certificate of the trial judge does not embrace the entire record we shall not consider the specified "causes for reversal." The case is here on strict bill of exceptions. Cf. State v. Hendrick, 70 N.J.L. 41; 56 A. 247 (R.S. 2:195-14; 2:195-16; 2:195-16; 2:195-18); State v. Clark, 75 N.J.L. 473; 68 A. 114; State v. Samaha, 93 N.J.L. 482; 108 A. 254. [128 NJL Page 346] The first point (assignments 3, 7, 76 and 79) says it was error to deny the following motions: (a) to quash the indictment; (b) the challenge to the array, and (c) in arrest of judgment. All three matters were argued on the theory that the acts of the "commissioners of juries" in the premises were void. It appears that the "citizen" commissioner, who with the sheriff constituted the statutory authority -- "commissioners of juries," was ineligible to occupy this office. It is also urged that it was error to refuse defendants' request to charge No. 9. This point should be disposed of first. The pith of the argument is that the grand jury was illegally impaneled because there was no de jure commissioners of juries in existence at the time the grand jury was impaneled, and the request was, that if the jury so found, they should return a verdict of "Not Guilty." This request was properly refused. The matter was one of law. The jury was not competent to pass on the question. The facts are that the appointed "citizen" commissioner of juries Carl Schroeder, was, on May 16th, 1939, elected a member of the governing body of the Borough of Belmar. This post is a public office. On April 16th, 1940, he was appointed a jury commissioner by the Justice of the Supreme Court assigned to the district of which Monmouth County is part. Mr. Schroeder acted as such commissioner from the date of his appointment until a year thence, that is, April 19th, 1941. During that interval the grand and petit jury lists were made up by Mr. Schroeder and the sheriff of Monmouth County. Our statute R.S. 2:87-5 provides: "The office ...