Brown v. New Jersey

The plaintiff in error was, on October 5, 1898, in the court of oyer and terminer of Hudson county, New Jersey, found guilty of the crime of murder. On March 6, 1899, the judgment of the court of oyer and terminer was affirmed by the New Jersey court of errors and appeals, and the case being remanded to the trial court plaintiff in error was, on April 19, 1899, sentenced to be hanged. The jury which tried the case was what is known to the New Jersey statutes as a 'struck jury,' authority for which is found in chap. 237, p. 894, Laws of New Jersey (1898). Sections 75 and 76 read as follows:

'Sec. 75. The supreme court, court of oyer and terminer, and court of quarter sessions, respectively, or any judge thereof, may, on motion in behalf of the state, or defendant in any indictment, order a jury to be struck for the trial thereof, and upon making said order the jury shall be struck, served, and returned in the same manner as in case of struck juries ordered in the trial of civil causes, except as herein otherwise provided.

'Sec. 76. When a rule for a struck jury shall be entered in any criminal case, the court granting such rule may, on motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and for the county in which any indictment was found, whether the names of such persons appear on the sheriff's book of persons qualified to serve as jurors in and for such county or not, ninety-six names, with their places of abode, from which the prosecutor and the defendant shall each strike twenty-four names in the usual way, and the remaining forty-eight names shall be placed by the sheriff in the box, in the presence of the court, and from the names so placed in the box the jury shall be drawn in the usual way.'

By §§ 80 and 81 of that statute, where there is no 'struck jury' and the party is on trial for murder, he is entitled to twenty peremptory challenges and the state to twelve, but in the case of a 'struck jury' each party is allowed only five peremptory challenges.

Messrs. William D. Daly and Joseph M. Noonan for plaintiff in error.

Mr. James S. Erwin for defendant in error.

Mr. Justice Brewer delivered the opinion of the court: