The Sunday morning news. [volume] (Jersey City [N.J.]) 1886-1891, 1891-02-22
THE LAW In TIE CASE.
Mr.. W1nfield's Cogent Ar
gument in the E1ec-
ton Appeals.
NO GROUNDS FOR NEW TRIAL.
7 he Convicted Ballot Box Suffer
Must Serve Out Their Sent
ences, He Argues.

Prosecutor Winfield made n brilliant
argument before the Court of Errors and
Appeals in Trenton last week against the
Jacob Moschells J. Thomas Derancy,
james Hart and Thomas Ballon, one
batch Of the convicted ballot box suffers.
Exceptions Nos 1, aud relate 70 the
jury. An objection WINS made to striking
a jury on tae ground that struck jury
is not applicable to Il case of conspiracy,
and that it is unconstitutional
In its application to criminal cases. After
the jury was struck the array was chai
lenged on the same ground. In the ar
gument below the objections were based
on the ground that on trial for murder.
etc.. when twenty chalIeges are allowed
struck jury would deprive defendant
of his legal number OF challenges The
right TO challenge twenty Jurors is 81 ven
by section n OF the Criminal Procedure
Act for the crimes therein mentioned and
this act is quite as subject TO
change as any other But conspiracy is
misdemeanor. on the trial of which ouly
six challenges of the jurors OF the ofdin-
airy panel are permitted. It is difficult to
understand how q struck jury is map
plicable to the trial OF such case. The
statute is very explicit that it may be had
in every case and il points out how to get
il and limits the challenges.
STRUCK JURIES.
The statute or 1916 expressly authorized
struck juries in all criminal cases, except
where the party was entitled to twenty
peremptory challenges. Bat the lialta-
lions Ia the act of 1916 was omitted in the
d Sat q n hrs
that it WIS the intention of the LegIsla-
ture to permit the courts on motion of the
prosecutor or defendant, to order struck
jury in any case.
Is not this act as constitutional as the
act for ordinary juriesa And Is not a
struck jury as applicable to try the
charge OF conspiracy as an ordinary jury?
The interests of the defendants are no
more likely to clash In challenging struck
jurors 60 the statutory limit, than in
challenging ordinary jurors. In the case
Of one jury as well as The other, 'One de-
PENDANT may want to strike OIL one man
another defendant may want that same
man kept on.
But how does that make one kind of
jury more inapplicable than the other?
The same difficulty must always exist
when there are more defendants tlan one
on trial at the same time, under what
ever methods the jury may be summoned.
The law is not responsible for such clash
| ing OF Interests, The defendants right
| In this matter Is ono of exclusion and not
| one OF selection. He cannot claim the
| right to select certain men for the jury;
he can only exclude to the number linn
| tied.
Exceptions s, Q, 10. IL and 10 relate to
| attempts of the defendants TO enforce
separate challenges OF jurors In each
| instance the Court held that the cnal-
| lenge though made by one defendant was
in effect joint challenge, as It affected
| all.
| Exceptions IA and 16 were upon the re-
| fusal or Court to allow more than three
| peremptory challenges TO the defendants.
! Upon these two and the five Mex pre-
| ceding exceptions arise the subject or
challenge Of struck jurors the right TO
challenge jurors without cause shown on
| trial of indictments has always been
| affected by the character OF the crime
charged against the defendant
THE CHALLENGES.
Mr.. Winfield traced the right to chal-
| lenge from the time OF KING Edward w.
| to show that while the number OF chal-
lenges OF jurors on the general panel has
been increased to six. the number OF chal-
lenges OF struck jurors remain at three
s'This,n he contended. s'Is the law in this
State today an applies at least 20 all in
dictmenrs for ordinary misdetnean-
ors. 1.-THE conclusion seems TO
be legitimate he summed up,
''that as the person limited the
number of peremptory challenges
of struck jurors 10 three and made the
right to these challenges depend on the
manner it is exercised in other cases,
and as on the trial of indictments for
crimes other than those enumerated in
II, Grim Prac. Act, the right Of chal-
ienge is given to the defendant or defend
ants aud not to every person. and as
these defendants are indicted for crime
4 tan
they are entitled 10 three peremptory
challenges and no more"
He cited In support OK this proposition
the conclusion of the Chief Justice in the
case Of Warren county freeholders, and
sail he thought Judge Van Syckel made
similar ruling III the Union county
Oyer and Terminer.
THE MOTION TO oUAsH.
Exception 2 attempts to bring up the
refusal of the court below to Quash the
Indictment on motion of the defendants.
1t seems to the defendant in error that
this question is not properly before this
court. The granting of a motion TO qualsh
has always been regarded as matter of
direction.
The refusal to quash cannot he brought
into this court for review by any process
known to the law.
This exception should be stricken out
1t is not properly in the record. and brings
up nothing for review. When the court
below refused to quash, that refusal
ended all controversy on that subject.
aud the defendants remedy lay in an
other direction.
The motion to quash was made on two
grounds.
/. That the words Of the statrte "for
the preversion and obstruction of justice,
or the due administration OF the law. !"
are not applicable to the election laws.
but are more pertinent TO the proceedings
in courts.
2. The second ground OF the motion to
quash was, that the Indictment does net
charge a conspiracy to commit some act
for the peryersion and obstruction of the
due administration of the laws. The con-
tention is that the indictment shoul.t
have charged conspiracy to commit some
act, that is to say. that the said NJ. ID. II.
q 4. did then and there put in said ballot
box 200 ballots, which were not then and
there voted by persons then and there
legally gu lifted 10 vote, and did then and
there count and give effect to the same
for the perversion and obstruction OF the
laws, etc.
THE INDICTMENT is GOOD.
FIrst.--There IS such certainty as will
identify The offence, SO that the party may
not be Indicted for one crime and tried
for another.
Second-It informs the defendants
what crime they are cal.ed upon to