are suspect. Persons of bias, known to the sheriff, are ineligible. Patent disabilities are as much as pressure of time and circumstance will permit to be considered. Of course on request of counsel or in the existence of conditions which seem suspect to the court, adjournment may be had for service of the tales. Neither of these situations obtained at the time of the presentation of the tales, counsel for the defense tacitly acceding to the procedures at that time by partaking of the examination of the prospective jurors.
Was there then denial of the right to a fair and impartial jury in the premises? The answer to that question depends, as the New Jersey Supreme Court said, on '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.' 31 N.J. at page 171, 155 A.2d at page 774. N.J.S. 2A:74-10, places upon the sheriff the duty of summoning from among the bystanders or others such additional number of persons qualified as jurors as may be ordered by the court. Other than this directive nothing is said as to how or from what sources he shall procure the jurors. These are matters within his discretion. In the present case there appeared no obvious disqualification of the accepted talesmen, nor did any appear on their voir dire. In the final analysis the basis of the petitioner's claim to violation of his rights rests on an alleged delegation of his duty by the under-sheriff to a stranger to his office.
In a well considered opinion by Chief Justice Weintraub, the New Jersey Supreme Court held that while the method pursued by the under-sheriff might have been unwise or irregular, it could not be construed as a delegation of authority. In telephoning to the various companies, requesting that persons be sent for jury duty, the under-sheriff did not authorize final selection by the recipients of the telephone call. They were requested to send people who might be considered for jury duty. The right to accept or reject them was never surrendered by the under-sheriff. At most by this means he secured the attendance of the possible jurors who became bystanders by their presence. And further, that his possibilities were not limited to bystanders as such at the time of issuance of the judge's order is indicated by the language of the statute referring to 'bystanders or others.' N.J.S. 2A:74-10.
The learned dissenting justice found difficulty in the fact that the sheriff was directed to 'summon' prospective jurors, inferring that in the context the use of the word 'summon' imported compulsion. That would certainly be true of bystanders. But summon has another signification, namely, notify. And notification need not of necessity be personal. However, when in response to notice, persons other than bystanders appear in court, they then become bystanders and any further call of the sheriff becomes then an effective command. This double significance of the word seems implied by the use of the words 'bystanders or others.' But whether or no, the fact is that when they appeared the persons notified became bystanders and as such, in the absence of disqualifying elements, subject to call as jurors.
In considering the application of the statute which prescribes the method of drawing juries, it may be well to keep in mind a comment of Justice Harlan, in the case of Hoag v. State of New Jersey, 1958, 356 U.S. 464, 468, 78 S. Ct. 829, 833, 2 L. Ed. 2d 913, where he said 'For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.' He further quotes from Brock v. State of North Carolina, 1953, 344 U.S. 424, 427-428, 73 S. Ct. 349, 351, 97 L. Ed. 456, as follows: 'The pattern of due process is picked out in the facts and circumstances of each case.'
It is the conviction of this court, further, that we must be concerned more with substance than technique, with realities rather than flimsy figments. We must indeed have deep concern about the rights of all men, of whatever state or condition, and be fiercely jealous of such rights. But our concern must be realistic and not based on impractical niceties.
As no evidence of fraud, collusion or impropriety developed in the hearing concerning the presence of the disputed tales, and none is alleged other than the method of their procurement, it seems to this court that there was no denial of the right of petitioner to a fair and impartial jury, and the petition is dismissed.
Let an order be submitted.
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