The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1896-12-03
NAT F0NLBR'S JURY.
Objections to the Struck Panel
the Basis Of Senator Days
Argument Today.

Senator William D. DAILY has gone to
Trenton today to argue the case in error
of Nathaniel Fowler, the ballot box suffer
of the crop of 1889, who has been combat
ing the conviction recorded against him
for the last five yeans. The Senate has
prepared an elaborate brief, in which he
advances various reasons why the YER
dict should be set aside. First of all, he
essails the jury. He says the jury con-
tempfated by the provisions of the Con-
stitution means the common or petit jury
as provided for and drawn from the body
of the county by the Sheriff. Whenever
a jury Is mentioned in our organic laws
the term is understood to have reference
to the jury as constituted at common law,
&c, &c. Such is the construction univer-
sally put upon that provision common to
the constitutions of the several States,
that the right of trial by jury shall re-
main inviolate." He argues thus
stClearly the Constitution never intend
ed anything but the common or petit jury
in criminal prosecutions, for II rs that
interests of accused. 1t is in this that the
accused has the opportunity OF looking
upon every juryman returned upon the
panel, who may be called upon to try the.
issue between It1tlt dtiAl Liz ~
HE can challenge for favor, for prln-i
cjpal cause or can challenge peremptorily.
He has a large number OF chAllenges ac-
corded him under the Jaw; Inese are
safeguards thrown around the defendant
to enable him to have that impartial traai
contemplated by the Constitution
.sQuibe the contrary hs the CONSTRUCTION
of a special jury in awarding the DEFEND
ant an impartial trial. Tha jury is ar
bitrarily struck by the Court. ms de-
PENDANT never sees the Jurors, but strikes
off at haphazard twelve and the state
strikes off twelve; and the remalnsng
twenty-four are returned by the Sheriff
to try the issue. What opportunity IS
here accorded for an impartial trial? The
very twelve men sticken off by the de-
fendant, and the twelve stricken on by
the State might be of exceptional chaFac-
ter and competent to try the issue; anu
were they present to be seen and inter
rogated. and challenged, would never be
excused from serving as jurors
The second assignment of error IS
based upon a colloquy between court and
counsel upopn a challenge to the array
upon the ground that the panel Of forty
& ght Jurors was struck without the pres
enee Of defendant or counsel. Under
Section "a of the act concerning lures;
the manner in which struck Jurles shall
be drawn is provided; among the pro
visions is one as follows: A which time
and place the Judge, in the presence OF the
parties. their agents or attorneys, or such
of them as shall attend for that purpose,
select and transcr be from said BOOK me
their place Of abode. as he shall think
most impartial and indifferent between
II submit and insist" the Senator
saws, 'that the presence of the defendant
or his attorney at the time the jury list
is selected is a right which cannot be
taken from him, and which our statute
cannot and does not take away from him;
the intent of the statute is that the de-
PENDANT or his attorney shall be present
unless they choose to be absent, and II
they were not properly notified or for any
reason were not present, the provisions
of the statute were violated. The Court
then could not say. that the defendants
were not entitled to object and give proof
of noncompliance with the terms Of the
statute on the part of the. State. This
was error. and the defendants. were preju-
diced thereby"
The third assignment of errors is based
upon an exception to a challenge to the
array, on the ground thai the Sheriff did
not summon the twenty-four jurors
struck to try the Indictment. The Court
erred in refusing to permit the defendants
PENDANTS were entitled TO the presence of
the t~wenty-four jurors. 1t was a special
panel and it was error to proceed in
their absence. The Court should have
ouashed the panel and struck a new one,
or referred the case to a common jury.
The reasons given as to the absence of
the jurors were the mere statements of
oath, as to the diligence used in attempt
Ing to summon them, or the source from
which they obtained their information.
Certainly the Court will not countenance
such loose practices, especially in cases
where the liberty of person is involved.