On appeal from the Atlantic County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Heher, J. Vanderbilt, C.J. (dissenting in part). Mr. Justice Wachenfeld and Mr. Justice Jacobs have authorized me to indicate that they join with me in this dissent. Vanderbilt, C.J., and Wachenfeld and Jacobs, JJ., concurring in result.
In the Atlantic County Court the defendant Kociolek was convicted by a jury of murder in the first degree without recommendation of life imprisonment, and accordingly was sentenced to death; and the judgment is here for review by direct appeal of right under Article VI, Section V, paragraph 1(c) of the 1947 Constitution.
A prior judgment imposing the death sentence on a conviction of first-degree murder was reversed, 20 N.J. 92 (1955), and the retrial resulted in the judgment presently before us.
The overruling of the accused's challenge to the array, or to the panel from which the trial jury was drawn, is now assigned for error.
The basic ground of challenge is that the trial jury was not impanelled as directed in N.J.S. 2 A:74-9, providing that in all cases where the person indicted for crime is entitled to 20 peremptory challenges and to have a "list of the jury" delivered to him previous to his trial, the sheriff or other proper officer shall draw a list of 48 jurors "or such larger number as is directed by special order of the court"; also, that "Such drawing shall be from the general panel of jurors drawn and summoned to attend during the stated session at which such defendant is to be tried and shall be made from the box in the presence of the judge of the county court, or in the presence of the clerk of such court"; and "If 48 jurors, or such larger number as may be specified by the special order aforementioned shall not have been so drawn and summoned, or if, for any reason, the number of jurors drawn and summoned shall be reduced below 48, or such larger number as aforesaid," the sheriff or other officer is directed to "add to the number so drawn and summoned as many more persons of the body of his county, qualified to serve as jurors, as shall make up the number of 48, or such larger number as aforesaid"; and, in its final clause, that "Defendant or his counsel may, at any time, in open court, except where the indictment is for treason or murder, waive the drawing or service, or both, of the list of jurors, and consent to be tried by a jury drawn in the ordinary way from the general panel."
And reliance is also placed on R.R. 3:7-2, providing that any person indicted for treason, murder or kidnapping "shall have a list of the jury delivered to him at least 3 days before the trial," and the prosecutor or the defendant or his attorney "may challenge the array on the ground that the jurors were not selected, drawn or summoned according to law, * * *." It is there directed that a challenge to the array be in writing, which was so here, "and decided before any individual juror is examined."
The general panel of jurors for the "Stated Session commencing" May 1, 1956 consisted of 390 persons. By order made February 20, 1956 the assignment judge directed that
the "Grand Jury List" comprise 125 persons, and the "Petit Jury List" 400 persons, and that the county clerk or his deputy "present in open court" on April 20 ensuing the "Jury Lists for the Stated Session filed with him, pursuant to R.S. 2 A:71-1, and at the same time and place, pursuant to R.S. 2 A:71-2, the Jury Commissioners shall draw 35 Grand Jurors and four separate Petit Jury Panels: Two panels to consist of 75 Petit Jurors each to serve for the trial of criminal causes in the Superior Court and County Court at Mays Landing, and two panels to consist of 75 Petit jurors each to serve for the trial of civil causes in the Superior Court and County Court at Atlantic City, and the remainder of the general panel consisting of 100 Jurors shall constitute a reserve list of jurors from which each of the foregoing panels may be supplemented if necessary."
This "written directive," the State maintains, "is implicit in the meaning of R.R. 1:29-1, and in the proper construction to be given to N.J.S. 2 A:74-8," providing that "The judges of the county court sitting for the trial of issues or causes in a county in which the general panel of petit jurors has been divided into separate panels may direct the drawing of juries from 1 or more of the separate panels," and "In the drawing of trial juries in such cases there shall be put into the box the names of the jurors constituting 1 of the separate panels designated by the trial judge"; and "If because of challenges, the default of jurors or otherwise, a sufficient number of jurors cannot be had from the jurors composing any separate designated panel," the court shall direct the sheriff "to order the jurors composing another of the separate panels into which the general panel has been divided to attend the court," and the names of the jurors composing such other separate panel "shall be put into the box."
And the State suggests that the assignment judge is authorized "to set up separate panels" by the last sentence of N.J.S. 2 A:71-2: "The persons whose names are announced shall constitute the panel of petit jurors for
service in the county for the next ensuing stated session of the courts therein, or for such part thereof as the assignment judge may direct." The italics indicate the phrase deemed of determining significance in this regard.
The general panel was accordingly divided into four separate panels, each comprising 75 jurors, designated Criminal No. 1, Criminal No. 2, Civil No. 1 and Civil No. 2, and a fifth called the "Reserve Panel," consisting of 90 jurors.
The county judge orally directed the sheriff "to cause" the 75 jurors composing Criminal No. 1 panel "to be brought in" for the trial of the indictment returned against the defendant; and this was done. There was no written order to that end. It was stipulated on the hearing of the challenge that there "was no redrawing out of all of the jurors returned for the May term of a panel of 48 jurors, or of any other number, to try this indictment." The challenge to the array was interposed at the outset; and it was disallowed for want of a showing of "prejudice," since the accused "in fact was given a larger list than 48," and there was no merit in the point that recourse should have been had to the "higher panel, including the civil," inasmuch as the order of the assignment judge directed the selection of "two panels of 75 petit jurors each, to serve for the trial of criminal cases in the County Court at Mays Landing," and two panels of 75 jurors each to serve in the trial of "civil cases in the Superior Court."
But the course thus taken was in utter disregard of the requirement of N.J.S. 2 A:74-9 that "in all cases where" the indicted defendant "is entitled to 20 peremptory challenges and to have a list of the jury delivered to him previous to his trial," the sheriff shall draw a special panel of 48 jurors, or such larger number as may be directed by special order of the court, from the "general panel of jurors drawn and summoned to attend during the stated session at which such defendant is to be tried," the drawing to be made from the box in the presence of the judge of the County Court or the clerk of the court, a course of procedure so imperative in expression as to bar waiver by the defendant or his counsel
where the indictment is for treason or murder, although in all other cases there may be a waiver, "in open court," by the defendant or his counsel, of "the drawing or service, or both, of the list of jurors, and consent to be tried by a jury drawn in the ordinary way from the general panel."
The statute in peremptory terms directs the drawing of a special panel from the general panel for the particular case; and the basic policy concept would seem to be the timely selection of the special panel to afford the accused, and the State as well, an opportunity for inquiry and due consideration of the qualifications of the jurors, an informed exercise of the essential right of challenge and thus to insure a fair and impartial trial, all this not alone as a concession to the accused's personal interest in a just trial, but also in fulfillment of society's concern in a rational course of justice precluding arbitrary action and deprivation of life or liberty save by due process of law, a responsibility of deeper gravity in capital cases, indeed a duty embedded in the natural law. The natural life, says Blackstone, "cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority." 1 Blk. Com. 133. See Hopt v. People of Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884), Harlan, J.; State v. O'Leary, 110 N.J.L. 36 (E. & A. 1933).
The State insists that N.J.S. 2 A:74-8; 2 A:71-8 and 2 A:74-9 are in pari materia and "should be so read," citing R.S. 1:1-1, and the "mandatory presumption to be given to the word 'shall' as employed in 2 A:71-9 is overcome by the character of the whole legislation -- 2 A:74-8, 2 A:71-8 and 2 A:74-9"; the "context of these statutes," it is said, "justifies the conclusion that the word 'shall' as appears in 2 A:74-9 was intended to be considered directory and not mandatory." N.J.S. 2 A:71-8 provides for the division of the general panel of petit jurors summoned for the "trial of causes" into two or more separate panels, in the discretion of the assignment judge, in a county in which there are two or more courts sitting simultaneously or where cases are
tried in different parts of the county, for service in a court or place and for a period designated in the order to that end.
And we are asked to take judicial notice of the fact that "there are but six Counties" of the State "having but one trial judge," and the remaining 15 "are serviced with from two to four County Courts"; that "In counties having two or more trial judges the court rooms are located, more often than not, on different floors of the building, or in separate buildings, and in the case of Atlantic County they are separated by many miles" -- the criminal trials are conducted at Mays Landing, the county seat, and the civil trials at Atlantic City, a distance of 19 miles, and the Atlantic County District Court "is two blocks removed from the Atlantic County Court, and the Superior Court is located three blocks from the County Court"; that in the six counties having but one judge, "there can be no division into separate panels, since N.J.S. 2 A:74-8 and 2 A:71-8 [are] limited to counties having more than one judge"; hence, N.J.S. 2 A:74-9 "remains effective in those counties, requiring a drawing of 48 or more jurors to be taken from the general panel," and thus "there is no inconsistency in the statutory scheme for the selection of trial juries."
But N.J.S. 2 A:74-9 is not so circumscribed; a holding that it is of such limited application would do violence to the spirit and indubitable reason of the legislative expression. The act is not only cast in imperative terms; its essential nature excludes the hypothesis of a purely directory declaration, of no avail if, after the challenge to the array is overruled, the subsequent adverse verdict cannot be overturned unless there be a showing of prejudice in the organization of the jury. If that were so, then the legislative directions for the establishment of juries, the heart of the system, could be disregarded with impunity.
This provision is designed to secure a fair and impartial jury; and such regulations in their essentials are ordinarily deemed mandatory, and there can be no doubt of the legislative intent to that end here, for the defendant's waiver of the "drawing or service, or both, of the list of jurors" is
expressly forbidden where the indictment is for treason or murder; and in all other cases of the enumerated class, the waiver and consent are to be given in "open court." It is not necessary to show actual prejudice; it is enough that the Legislature has so commanded; all that need be shown is that the jury was not constituted in accordance with the statute. Compare State v. Rombolo, 89 N.J.L. 565 (E. & A. 1916); State v. Lapp, 84 N.J.L. 19 (Sup. Ct. 1913). And see Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607 (Sup. Ct. 1935). "The question is whether a proper tribunal was established, and not whether an improperly established tribunal acted fairly." Shulinsky v. Boston & Maine R.R. Co., 83 N.H. 86, 139 A. 189 (Sup. Ct. 1927); State v. Kelly, 100 Conn. 727, 125 A. 95 (Sup. Ct. Err. 1924). Compare State v. McGee, 80 Conn. 614, 69 A. 1059 (Sup. Ct. Err. 1908); Healey v. People, 177 Ill. 306, 52 N.E. 426 (Sup. Ct. 1898); State of Missouri v. Rouner, 333 Mo. 236, 64 S.W. 2 d 916, 92 A.L.R. 1099 (Sup. Ct. 1933). See also 50 C.J.S., Juries, § 164, p. 891; 31 Am. Jur. 611.
And a companion provision of the statute, N.J.S. 2 A:74-10, makes clear the legislative intent and purpose. Recourse to the general panel can be had only "(w)hen the special panel or list of jurors served on a defendant in any criminal case in which he shall be entitled to 20 peremptory challenges shall, from any cause, be exhausted before a jury for the trial of the indictment shall be obtained"; in that event, "talesmen shall be taken from the general panel of jurors returned during the stated session at which the defendant is to be tried, if any remain"; and if "more talesmen are required than the number of jurors remaining on the general panel," the sheriff or other proper officer is directed to summon forthwith, "from among the bystanders or others," such "additional number of persons qualified to serve as jurors" as the court may order, and place the names of the persons so returned in the box "and draw therefrom until the jury is completed," and to repeat the process if need be "until the necessary number of jurors shall be
obtained." But the defendant shall not be entitled "to a service of the list of talesmen taken from the general panel after the special panel is exhausted, nor of the talesmen summoned by order of the court," unless the court "shall specially so direct," in which case the court "shall fix the length of time the list of talesmen shall be so served, before the drawing of the jurors shall proceed."
The provisions of N.J.S. 2 A:74-9 and 2 A:74-10 are of long standing, R.S. 1937, 2:91-2; 2:91-3, L. 1898, c. 237, sections 82, 83; and we know of no case in which the failure to comply with the provision for a special panel in a case such as we have here was deemed a purely formal lapse in the absence of a showing of actual prejudice. Indeed, such a holding would nullify a statutory direction so vital in legislative intendment as to be expressly secured against the voluntary waiver of the defendant himself and his counsel. The cases deal in the main with the proceedings subsequent to the drawing of the special panel. See State v. Rombolo, supra; State v. Tomassi, 75 N.J.L. 739 (E. & A. 1908); State v. Martin, 94 N.J.L. 139 (E. & A. 1920); State v. Rosenberg, 97 N.J.L. 430 (Sup. Ct. 1922); State v. Mohr, 99 N.J.L. 124 (E. & A. 1923); State v. Turco, 99 N.J.L. 96 (E. & A. 1923); State v. Martin, 102 N.J.L. 388 (E. & A. 1926); State v. Doro, 103 N.J.L. 88 (E. & A. 1926); State v. Juliano, 103 N.J.L. 663 (E. & A. 1927); State v. Cioffe, 128 N.J.L. 342 (Sup. Ct. 1942), affirmed 130 N.J.L. 160 (E. & A. 1943).
In State v. Rombolo, supra, the judgment of conviction was reversed since only 31 of the 48 jurors constituting a special panel, duly drawn from the general panel under the particular section, were placed in the box, the others being then in service on other juries; and the holding was, Gummere, C.J., that resort to the general panel for the completion of the jury constituted a violation of R.S. 2:91-2 and so ground for reversal of the judgment of conviction.
And in State v. Tomassi, supra, Pitney, J. affirmed that the drawing of a special panel of 48 to be served upon the defendant was "required only when the general panel consists
of more than that number, the drawing being intended for the purpose of selecting 48 jurors out of a greater number," and "Where the general panel consists of more than 48 the drawing is essential." The third sentence of N.J.S. 2 A:74-9 is no doubt a survival of the early days when the general panel was usually 48 in number. At all events, such has been the unvarying interpretation of these interrelated statutes over the years.
The validity of a challenge to the array of necessity depends upon the circumstances and the right when the challenge is interposed. And administrative considerations are utterly irrelevant; expediency in other directions affords no ground whatever for subverting the essential legislative policy, related as it is to the essence of criminal procedural justice.
And in principle it does not matter that the accused did not exhaust his allowable statutory challenges to the poll. There was here a radical procedural ...