On appeal from the Essex County Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Hall and Schettino. For reversal -- Justice Proctor. The opinion of the court was delivered by Weintraub, C.J. Proctor, J. (dissenting).
Defendant was convicted for the sodomy-murder of his stepdaughter, age 4 1/2 years. The jury not having recommended life imprisonment, the death sentence was imposed.
Three alleged errors are urged. Our examination of the record indicates they are the only matters warranting discussion.
Pursuant to N.J.S. 2 A:74-2, the court directed the impaneling of a jury of 14. The panel was exhausted after 13 jurors had been selected, whereupon the court ordered
the sheriff to "return a tales de circumstantibus forthwith" to serve in the case. The fourteenth juror was chosen from among those produced by the sheriff's efforts.
On the third day of actual trial, presumably upon first learning of the circumstances complained of, defendant moved for a mistrial on the ground that Juror No. 14 had not been summoned in accordance with N.J.S. 2 A:74-10 which reads in part:
"If more talesmen are required than the number of jurors remaining on the general panel, the sheriff or other proper officer shall forthwith summon, from among the bystanders or others, such additional number of persons qualified to serve as jurors as may be ordered by the court, and make return thereof immediately, and place the names of the jurors so returned in the box and draw therefrom until the jury is completed. * * *"
Upon the motion, the under-sheriff was examined. He testified that at about 3:45 P.M. he, by telephone, requested officers of eight large commercial companies, including the telephone company, to dispatch employees to the sheriff's office. He informed a vice-president of the telephone company of the court order and asked if "they could send us eight or ten people who might be considered for jury duty." The vice-president "asked me what kind of a case it was and I told him it was a murder trial." Four employees of the telephone company appeared that afternoon and 14 more the next day. The telephone calls produced from all sources some 35 prospective jurors. Of the four telephone company employees who responded on the day of the call, two went to the sheriff's office and were brought to the courtroom. The other two, of whom Juror No. 14 was one, went directly to the courtroom where they were found by the under-sheriff. All were named in the formal return to the court's order. Defendant of course knew they were talesmen.
The good faith of the under-sheriff was not questioned; in fact, it was conceded. Rightly or not, the time factor and the territorial situation presumably suggested the technique he used. There is no evidence as to how the specific employees
were obtained within the telephone company. There is no suggestion that they were tainted in any way by anything said to them. The court offered to adjourn to permit defendant to adduce proof of prejudice in fact, but counsel declined to go beyond the limited showing we have described. There is no dispute that Juror No. 14 possessed the statutory qualifications, and of course he was examined by counsel before he was chosen to serve.
The issue is whether the under-sheriff departed from any principle, judicial or legislative, and if he did, whether that departure invalidates the conviction upon the showing described above.
A motion for mistrial was inappropriate in any event. Rather the motion should have been to remove the juror since a sufficient number would have remained to hear the case. See U.S. v. Smith, 253 F.2d 95 (7 Cir. 1958), certiorari denied 357 U.S. 919, 78 S. Ct. 1360, 2 L. Ed. 2 d 1364 (1958); People v. Abbott, 47 Cal. 2 d 362, 303 P. 2 d 730 (Sup. Ct. 1956). Nonetheless, a death sentence being before us and Juror No. 14 having been one of the 12 who returned the verdict, we will consider the merits of the issue.
It was the ancient function of the sheriff to select and summon jurors in response to the writ of venire facias. His discretion was described as "uncontrolled." 1 Thompson, Trials (1889), § 13, p. 12. The process was attended by abuses, chiefly the packing of juries. To guard against that evil, the English courts were authorized by statute to reform the panel by taking out names and inserting others. State v. McCarthy, 76 N.J.L. 295, 300 (Sup. Ct. 1908). To the same end, statutes today generally provide for the preparation of lists of jurors in advance of the court sessions, from which lists panels are chosen by lot, and from which panels jurors are chosen again by lot for service in individual cases. Such, of course, is the overall plan of our statute, with jury commissioners rather than the sheriff being charged with the duty to select qualified persons for inclusion in the basic jury lists. N.J.S. 2 A:70-1.
There is no constitutional requirement for an affirmative statutory standard for the selection of jurors, Fay v. People of State of New York, 332 U.S. 261, 272, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947). The nature of the subject precludes prescription of a detailed pattern. Beyond specifying qualifications of jurors, N.J.S. 2 A:69-1, and exemptions from jury service, N.J.S. 2 A:69-2, and forbidding certain practices, N.J.S. 2 A:72-7 and 8, the statute commits to the discretion of the jury commissioners the ways and means to achieve the objective of "the just distribution of jury service among those persons qualified therefor in the various wards and municipalities" of the county. N.J.S. 2 A:70-1. There is, of course, the cardinal principle that the constitutional right to jury trial means an impartial jury drawn from a cross-section of the county. Courts will not hesitate to strike down practices, however subtle, which are designed to subvert this principle, but they may not merely substitute their own formula for that chosen in good faith by the jury commissioners. State v. Stewart, 2 N.J. Super. 15, 20 (App. Div. 1949).
N.J.S. 2 A:74-10, quoted above, authorizes the court to order the sheriff to summon additional "qualified" persons "from among the bystanders or others" to complete the jury. For the limited purpose of thus filling the jury box, the statute continues the historic role of the sheriff to select and return qualified jurors. The matter is committed to his discretion. There is no specific direction as to how or where in the county he shall procure the jurors. See Patterson v. State, 48 N.J.L. 381, 385 (Sup. Ct. 1886). He need not summon every man he meets. State v. Bouvy, 124 La. 1054, 50 So. 849, 851 (Sup. Ct. 1909). It would seem that he may "judge of their [statutory] qualifications in the first instance," but of course "ought not to interrogate them as to their opinions or bias." 1 Thompson, Trials (1889), § 27, p. 27. He must not wittingly select partial jurors or accept the suggestion of a litigant. Boyles v. M'Eowen, 3 N.J.L. 253 (Sup. Ct. 1810); United States
v. Murphy, 224 F. 554 (D.C.N.D.N.Y. 1915); State v. Clark, 256 S.W. 554 (Mo. Ct. App. 1923). In passing, we note that N.J.S. 2 A:72-8 prohibits the return of any person who applies to the sheriff to be summoned as a juror. We need not discuss the precise reach of that provision since the facts before us are clearly beyond it; there is no suggestion that any of the talesmen sought to be summoned.
Defendant urges violation of the principle that the duty of selection may not be delegated to or exercised by a stranger to the office charged with that duty. Robins v. Martin, 44 N.J.L. 368 (Sup. Ct. 1882); Glasser v. United States, 315 U.S. 60, 85, 62 S. Ct. 457, 86 L. Ed. 680 (1942); Re Petition for Special Grand Jury, 50 F.2d 973 (D.C.M.D. Pa. 1931); Dunn v. United States, 238 F. 508 (5 Cir. 1917). He contends the under-sheriff transferred his role to the several officers of the eight companies he reached by telephone. We think this is a strained view of the situation. The under-sheriff did not purport to commit the ultimate selection to them; that authority remained with him. Rather he sought by telephone to assemble expeditiously a sufficient number of persons to permit him to execute the order. We must keep in mind that we are here dealing with the selection of talesmen to complete a jury rather than with the preparation of a basic jury list, the situation presented in the cases just cited. The urgency which arises upon the exhaustion of the panel prevents a studied selection. The sheriff's approach inevitably becomes somewhat a hit-or-miss affair. This is not to say that the ...