State v. Martin , 102 N.J.L. 388 ( 1926 )

This case is before us upon a writ of error directed to the Essex County Court of Oyer and Terminer. The writ has brought to this court for review the conviction of Frank Martin of murder in the first degree. The case is before us on strict writ of error as well as under the one hundred and thirty-sixth section of the Criminal Procedure act. On May 23d 1925, at about three-thirty P.M., Frank Martin came to his home in Bloomfield, New Jersey. He lived with his wife, his daughter Violet Smith, wife of A.G. Smith; a daughter Helen and a son, Frank, Jr. His son-in-law was also a member of the family. Upon arriving at his home there he had a dispute with his wife and daughter, Mrs. Smith. Two police officers were summoned. Mrs. Smith, whose collie dog was said to have been the cause of the argument, refused to make a complaint against her father. The officers left. About fifteen minutes after they left they were again called to the house by Mrs. Martin. On the floor of the living room the officers found the body of Mrs. Smith. She was dead. There were a number of cuts on the body, apparently made by a hatchet. A hatchet was found on the premises. Martin was found slipping on a shirt. He was taken into custody. Later in the day Martin made a statement to the effect that his daughter Mrs. Smith brought the collie dog into the room. The dog made a rush for him. He grabbed a chair and made a rush at the dog. Mrs. Smith called to the dog and the dog came to her. The dog then came at him again. He then went into a pantry, got a hatchet, and threw the hatchet at the dog. It missed the dog but hit Mrs. Smith on the head. She fell to the floor. He spoke to her but she did not answer him. He then waited for his wife to come in. She did not come, so he finished the job by hitting Mrs. Smith on each leg with the hatchet. He gave as the reason for finishing the job that his daughter and son-in-law had given him a rotten deal when he was sentenced to a term in the New Jersey State Prison at Trenton, some two years before the death of Mrs. Smith.

The assignments of error are forty-four in number. The specifications of causes for reversal number thirty-three. The brief submitted for the plaintiff in error argues such of these which are not abandoned under sixteen points. The points argued fall into four groups, namely, the questions which arose (a) in selecting the jury, (b) in the admission and rejection of testimony, (c) in the ruling of the trial court refusing to direct a mistrial, and (d) in the charge of the trial judge.

Pursuant to section 82 of the Criminal Procedure act a special panel of forty-eight jurors were drawn from the general panel and summoned. The defendant at the trial challenged the array. The first ground for this challenge was that one, Edgar Blackledge, named on the list had not been summoned. To prove that Blackledge had not been summoned the under-sheriff of Essex county was sworn as a witness. He had no personal knowledge of the facts but was allowed to read into the record a memorandum which had been made to the effect that the summons for Blackledge had been served on the housekeeper, June 5th; that it had been served by Peter Flanagan, June 20th, 1925. The memorandum also contained the words "In Chicago, Illinois, A. Walker." A. Walker was also a deputy sheriff. He was sworn, and testified that he had no personal knowledge of the facts but had been informed by the jury commissioner that Blackledge was in Chicago. The memorandum referred to was not a public record. It was not evidential. Assuming it to be evidential it did not prove that Blackledge had not been summoned. It, apparently, showed that the summons for Blackledge was served on his housekeeper, then served personally, and then Blackledge went to Chicago. The law is that jurors may be summoned by notice served personally or left at the juror's dwelling house. 3 Comp. Stat., p. 2966, § 8. There was a failure of proof that Blackledge had not been summoned. On this ground the trial judge properly overruled the challenge to the array. If Blackledge had not been summoned in accordance with the provisions of the statute, this would not have been a sufficient ground to uphold the challenge to the array. Failure to serve a member of a panel does not vitiate the entire proceeding.

The second ground advanced for a reversal of the ruling of the trial judge on the challenge to the array is that between the service of the special panel upon the defendant and the day of trial ten jurors drawn on the special panel had been excused by the court. This point has been heretofore raised, considered, and held to be without merit. Patterson v. State, 48 N.J.L. 381. In Aaronson v. State, 56 Id. 9, the precise point raised in the present case was decided in an opinion by Chief Justice Beasley. The court in that case held that for reasonable cause a juror whose name is on a list of forty-eight names served upon the prisoner may be discharged by the court. The opinion says: "If one or more of the persons on the general list can be discharged from service, why not one or more be similarly discharged from the special list?" In State v. Martin, 94Id. 139, it was held that the absence of sixteen jurors of the special panel of forty-eight was not a ground for reversal. If this were not the law it would be difficult to bring a defendant to trial. While the defendant has no legal right to complain of the court's exercising its right to excuse jurors from service for reasonable cause, it is, however, a right which, in justice to the defendant, should be sparingly exercised.

The plaintiff in error next contends that the trial judge erred in disallowing challenges to the polls for cause. There were four jurors who were examined and were challenged by the defendant below. Assuming for argument that the challenges were made and wrongfully disallowed, the record discloses no harm or prejudice to the defendant by these rulings. The jurors mentioned were not members of the jury which tried the defendant. They must have been, therefore, challenged peremptorily. The defendant was allowed twenty peremptory challenges. He challenged peremptorily sixteen jurors. His peremptory challenges were not exhausted when the drawing of the jury was completed. He was therefore not harmed by the rulings of the trial judge, of which he now complains. Such rulings constitute no ground for reversal. Drake v. State,53 N.J.L. 23.

The next point argued deals with the refusal of the trial judge to permit the defendant's counsel to ask a juror what his opinion was as to the guilt or innocence of the defendant. The juror had not been challenged. There was no issue before the court. The ruling of the trial judge was correct. It is supported by the cases of Clifford v. State, 61 N.J.L. 217, and State v.Palmieri, 93 Id. 195, both cases being decisions of this court. The juror to whom the question mentioned was directed did not sit as a member of the jury which tried the defendant. The defendant was therefore not prejudiced by the ruling of the trial judge. This concludes the consideration of the group of assignments of error and specifications of causes for reversal dealing with the selection of the jury.

Counsel for the plaintiff in error next argues assignment No. 11. This deals with an exception taken to the statement of the trial judge that he would permit a witness to refresh his recollection from a statement made by the defendant. While Joseph J. Huddy, chief of police of Bloomfield, was being cross-examined he was asked a question. Before answering it the trial judge said that if counsel were referring to matters in a statement made by the defendant he would give the witness the privilege of refreshing his recollection from the statement. The defendant's counsel then stated that the witness had not yet stated he needed to refresh his recollection, to which the trial judge replied that he was merely advising the witness that he might do it. An exception was then taken to this ruling. The record fails to disclose that the witness refreshed his recollection by looking at the defendant's statement. As he did not use the statement no harm was done the defendant, assuming that the trial judge erred in his ruling.

The assignment of error next argued deals with the overruling of objections made to questions asked by the prosecutor upon the cross-examination of certain witnesses called by the defendant. The ground of objection was that the cross-examination was upon matters not touched upon in the direct examination. An examination, however, of the testimony satisfies us that the questions allowed upon cross-examination were proper, as they tended to test the accuracy of statements made upon direct examination by the witnesses. The defendant's counsel objected to questions asked Amelia Dillon, a sister of the defendant, as to conversations she had with her brother, the defendant. This witness was called to testify as to the nervous condition of the defendant. On direct examination she was asked this question: "What was there about him which made you come to the conclusion that he was nervous; what did he do and what did he say, if anything?" This opened the door to the questions objected to which related to conversations which she had had with the defendant. The state had the right to show by conversations of the defendant the cause of the defendant's nervousness, to which the witness had testified the defendant was subject.

There was also objection to certain questions asked on cross-examination of the witness for the defendant, John C. Devine. The overrulings of these objections by the trial court were proper rulings. The questions were of the same character as these asked the witness Amelia Dillon. They were admissible for the same reason.

The next assignments of error argued in the brief for the plaintiffs in error relate to questions asked by the state upon cross-examination of the defendant's witness Chris Murderich. This witness testified to the nervousness of the defendant. The questions asked related to whether or not the witness had not told the defendant of certain relations between members of his family and the man who later became the defendant's son-in-law. We do not consider the questions objected to improper, in view of the fact that they might have had a bearing upon or be an explanation of the defendant's nervousness, which was the subject of the direct examination. Furthermore, the latitude of the cross-examination of a witness is a matter largely within the discretion of a trial judge. Had the questions been improper, the defendant suffered no harm by the trial judge overruling the objections made thereto, as the witness replied that he had not told the defendant the matters referred to in the questions.

The twenty-first assignment of error brings up the propriety of the court's ruling that a witness, Annie Martin, an inmate of the Hospital for the Insane at Overbrook, in Essex county, who was called by the defendant as a witness, was incompetent to testify. The trial judge held the witness incompetent. The trial of the question of the incompetency of a witness by reason of insanity must be by the court and by inspection only. State v. Mohr,99 N.J.L. 124. The trial judge held that the witness was incompetent. We see no abuse of his discretion in this finding. There is, consequently, no merit in the point raised.

It is next argued that the trial judge erred in refusing to declare a mistrial or to grant a new trial, because of a remark and outburst made by the defendant's wife during the summation of the case. The court immediately, on the outburst, ordered that Mrs. Martin be removed from the court room, and admonished the jury that they must decide the case upon the evidence submitted. Whether or not a mistrial shall be declared or a new trial granted is a matter within the discretion of the trial court. It is not reviewable on error. It is not even reviewable under section 136 of the Criminal Procedure act. State v. Schuck,96 N.J.L. 154.

The next assignments of error and specifications of causes for reversal deal with the charge of the trial judge. The first criticism of this charge is directed to the following portion of the charge: "The statute of this state has classified murder into two degrees, murder in the first degree and murder in the second degree, and the statute requires that, upon conviction, the jury is to designate by their verdict whether they find the accused guilty of murder in the first degree or murder in the second degree. The distinguishing feature between the two degrees is the intent with which the homicidal act is done." It is contended that this portion of the charge impressed upon the jury that the intention to take the life of a person is the distinguishing feature between murder in the first degree and murder in the second degree, and that a layman would be led to the conclusion by the statement that if a defendant intentionally takes the life of a human being he must be guilty of murder in the first degree. It has frequently been held that a charge must be considered as a whole. Sullivan v. The NorthHudson County Railroad Co., 51 N.J.L. 518. The portion of the charge immediately following the part criticised reads: "If the intent was to take life, and the act was premeditated, deliberate and willful, it is murder in the first degree. And you must find, in order to convict of murder in the first degree, that the accused contemplated the act — that is to say, premeditated it; then determined upon its commission — that is to say, willfully intended it, then weighed such intent before carrying it into effect, or, in other words, deliberated." This destroys, it seems to us, the contention advanced in behalf of the defendant.

The following portion of the charge is next attacked as erroneous: "Murder in the second degree comprehends those cases of murder which are an attempt to do mere bodily harm without intent to take life, or where the act is done in the heat of passion without justification, and lacking the essential elements of the highest degree of crime — premeditation, deliberation and willfulness." This is the same language which was used by the trial court in the case of State v. Mosley, ante, p. 94, decided by this court on December 19th, 1925. In this case Chancellor Walker said: "Now, as the jury found the defendant guilty of murder in the first degree, and there was sufficient evidence to support that finding, and which was not against the weight of the evidence, the defendant is not harmed by the erroneous charge with reference to murder in second degree, assuming that there was error in that respect." State v. Mellillo, 77 N.J.L. 505;State v. Jayson, 94 Id. 467. As, in the present case, the defendant was found guilty of murder in the first degree, as was the defendant in the case of State v. Mosley, the decision of this court in the Mosley case upon this point is dispositive of this point in the present case.

The next assignment of error urged for reversal is the reference in the charge to the court of pardons made in the following language: "I might say this, that, under the law, we have a court known as the court of pardons, which, if it sees fit, can set aside that sentence." That such a statement in a charge, although deemed unfortunate, does not constitute legal error, has been repeatedly held in this court. State v.Martin, 94 N.J.L. 139; State v. Schilling, 95 Id. 145;State Mosley, supra.

Our examination of the evidence satisfies us that the verdict is not against the weight of the evidence.

This completes the consideration of all the assignments of error and specifications of causes for reversal argued in behalf of the defendant below. We find that no legal error was committed by the learned trial judge before whom the defendant was tried. The judgment of conviction is, accordingly, affirmed.