On writ of error to the Bergen County Court of Oyer and Terminer.
For the plaintiff in error, John B. Zabriskie and Emil M. Wulster.
For the defendant in error, Walter G. Winne.
The opinion of the court was delivered by
DONGES, J. Plaintiff in error was convicted on February 5th, 1945, of murder in the first degree without a recommendation of life imprisonment. He was convicted upon trial on March 23d, 1944, on the same indictment, of murder in the first degree without recommendation of life imprisonment, which conviction was reversed by this court. State v. Deegan, 132 N.J.L. 261.
The facts briefly stated are that on January 14th, 1944, Mrs. Ethel Hermann, aged forty, was attacked by plaintiff in error, Deegan, as she was on her way from her home in Dumont, Bergen County, to the house of a friend to spend the evening, the purpose of the attack being to rob her. There were two defendants named in the indictment, Deegan and one Hoffman, who were together in Dumont with two young women with whom they had been rooming in a New York hotel. They were short of money and had gone to Dumont, where Deegan's parents resided, for the purpose of obtaining money to go to Boston, Massachusetts, with these young women. The uncontradicted testimony is that it was their intention to first seek money at the home of Deegan from his parents, and, failing that, to obtain it by robbery or any other available means. For that purpose, after failing to obtain it
from his parents, Deegan got a baseball bat at his home and concealed it under his coat. After following Mrs. Hermann for about half a mile, Deegan asked her where a certain place was, and upon her reply that she did not know, Deegan struck her over the head, from the rear, with the bat. She immediately fell, and Deegan dropped the bat and stole her pocketbook. Thereupon, Deegan and Hoffman fled to the Dumont railroad station, where they joined the two girls and went back to New York. Deegan was apprehended in New York and made a confession of the incident. On the way to the railroad station Deegan, apparently conscious of the act he had committed, said to Hoffman, "I wonder if I hit her too hard." Hoffman responded, "I don't think so. I don't know." Whereupon Deegan said, "I think I hit her too hard. I think I hit her too hard." She died as a result of the blow.
At the trial plaintiff in error was not a witness and there was no challenge of the facts leading up to the attack and the motive for the assault. In the absence of an adequate defense of insanity, there could be no question of the plaintiff in error's guilt and the propriety of the verdict upon the proofs.
Plaintiff in error argues twenty-six assignments of error and twenty-six specifications of cause for reversal. These generally have to do with alleged error in not sustaining the challenge to the array of jurors and the alleged denial to plaintiff in error of his right to present evidence in support of such challenge. Second, error in the selection of the jury. Third, error in the trial court's charge. Fourth, error in statements of the prosecutor of the pleas to the jury. Fifth, error in the admission and rejection of evidence. Sixth, that the verdict was against the weight of the evidence and was the result of mistake, bias and prejudice.
The challenge to the array is based upon the fact that the jury was struck by the judge who sat in the first trial, and alleges prejudice and partiality on his part. At the hearing on this challenge no evidence was submitted by plaintiff in error, but, subsequently, the judge permitted the plaintiff in error to submit evidence of witnesses and counsel for the plaintiff in error were sworn. They testified to the effect that
the trial judge, after the conviction in the first case and its reversal by this court, commented that there was no question of the defendant's guilt and that the accused should have been "hung, drawn and quartered." The judge disclaimed any bias or prejudice against the accused, but, to avoid any question as to his ability to act fairly, he disqualified himself and another judge sat in the trial now under review.
The challenge to the array was demurred to by the state, and the judge ruled that there being no reasons stated in the challenge that would disqualify the jurors, and no proofs submitted to justify sustaining the challenge, it should be dismissed. There was no proof that the jury was not properly drawn or that the jurors on the list were disqualified for any reason. The names were taken from the struck jury list prepared by the jury commissioners.
As has been held in a number of cases by this court, the challenge is radically defective in that it fails to set out any facts disclosing that the judge was improperly interested in the outcome of the case against the plaintiff in error, or that the jurors were improperly drawn, or were biased or prejudiced against plaintiff in error. State v. Barker, 68 N.J.L. 19; State v. Bolitho, 103 Id. 246.
In State v. Barker, supra, Chief Justice Gummere said:
"Assuming, however, that the presence upon the panel of persons who are disqualified is good ground of challenge to the array, the challenger must set forth in his challenge the facts from which the disqualification arose. Whether or not a man is disqualified to serve as a juror is a conclusion of law to be drawn by the court from the facts submitted to it. In Mann v. Glover, 2 Gr. 195, 203, Chief Justice Hornblower says: 'A challenge must be in such terms that the court can determine whether the facts, if true, are sufficient to support such challenge. The defendant says he challenges the juror because "he does not stand indifferent between the parties." But these words do not constitute a challenge; they express only the reason for making the challenge or the judgment or conclusion of law consequent upon finding the ground of the challenge to be true. He must go further, and state why the juror does not stand indifferent; he must state some facts or
circumstances which, if true, will show that the juror is positively and legally disqualified.'"
In State v. Bolitho, supra, the challenge to the array was based upon the alleged partiality and bias of the sheriff who drew the jury. In that case it was said:
"It is to be observed that the challenge is radically defective, in that it fails to set out any facts disclosing the sheriff to have been improperly interested in the outcome of the trial of the case against the defendant. * * * The panel of petit jurors was drawn according to law by the jury commissioners, and the fact that the sheriff was subsequently disqualified on the ground of such an interest in the cause as to disqualify him from participating in drawing a panel of grand jurors, standing alone, did not have the effect of invalidating the act of the jury commissioners or affect the lawful status of the petit jury.
"Moreover, the challenge under consideration, like the challenge to the judge, has the same radical defect, in that it contains solely a statement of the reasons for making the challenge. This has been held to be insufficient in law. Mann v. Glover, 14 N.J.L. 195, 203. In State v. Barker, 68 Id. 19, 21, the Supreme Court held that 'a demurrer only admits the facts set out in the pleading, and not then unless they are sufficiently pleaded.'"
The challenge to the array in the present case was properly overruled.
Assignments and specifications 2, 3, 4, 5, 6, 7, 8 and 9 have to do with alleged errors in the selection of the jury. These include questions propounded to jurors, which were objected to and the objections were sustained by the trial judge, and, in other instances, where the objections of plaintiff in error were overruled. In the light of the ultimate selection of a jury satisfactory to plaintiff in error, we deem it unnecessary to deal with these questions. The record discloses that, in each instance where objection was interposed and dealt with by the trial judge, the juror was either challenged by the state or ...