Sections 75 and 76, of Chapter 237 of the Laws of New Jersey of
1898, contained the following provisions:
"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
Page 175 U. S. 173
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 sections 80 and 81, it was provided that 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:
Held,
(1) That these provisions are not in conflict with the
Constitution of the United States.
(2) That, the highest court of the New Jersey having held that
they are not in conflict with the constitution of that state, this
Court is foreclosed on that question by that decision.
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 c.
237, p. 894, Laws of New Jersey (1898). Sections 75 and 76 read as
follows:
"SEC. 75. The ~ SEC, 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
Page 175 U. S. 174
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 sections 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.
MR. JUSTICE BREWER delivered the opinion of the Court.
That the statutory provisions for a struck jury are not in
conflict with the Constitution of New Jersey is for this Court
foreclosed by the decision of the highest court of the state.
Louisiana v. Pilsbury, 105 U. S. 278,
105 U. S. 294;
Hallinger v. Davis, 146 U. S. 314,
146 U. S. 319;
Forsyth v. Hammond, 166 U. S. 506.
The first ten Amendments to the federal Constitution contain no
restrictions on the powers of the state, but were intended to
operate solely on the federal government.
Barron v.
Baltimore, 7 Pet. 243;
Fox v.
Ohio, 5 How. 410;
Twitchell
v. Pennsylvania, 7 Wall. 321;
United States v.
Cruikshank, 92 U. S. 542,
92 U. S. 552;
Spies v. Illinois, 123 U. S. 131;
In re Sawyer, 124 U. S. 200,
124 U. S. 219;
Eilenbecker v. District Court of Plymouth County,
134 U. S. 31;
Davis v. Texas, 139 U. S. 651;
McElvaine v. Brush, 142 U. S. 155;
Thorington v. Montgomery, 147 U.
S. 490;
Miller v. Texas, 153 U.
S. 535.
Page 175 U. S. 175
The state has full control over the procedure in its courts,
both in civil and criminal cases, subject only to the qualification
that such procedure must not work a denial of fundamental rights or
conflict with specific and applicable provisions of the federal
Constitution.
Ex Parte Reggel, 114 U.
S. 642;
Iowa Central Railway v. Iowa,
160 U. S. 389;
Chicago, Burlington & Quincy Railroad v. Chicago,
166 U. S. 226.
"The Fourteenth Amendment does not profess to secure to all
persons in the United States the benefit of the same laws and the
same remedies. Great diversities in these respects may exist in two
states separated only by an imaginary line. On one side of this
line, there may be a right of trial by jury, and on the other side
no such right. Each state prescribes its modes of judicial
proceeding."
Missouri v. Lewis, 101 U. S. 22,
101 U. S.
31.
The state is not tied down by any provision of the federal
Constitution to the practice and procedure which existed at the
common law. Subject to the limitations heretofore named, it may
avail itself of the wisdom gathered by the experience of the
century to make such changes as may be necessary. For instance,
while at the common law an indictment by the grand jury was an
essential preliminary to trial for felony, it is within the power
of a state to abolish the grand jury entirely and proceed by
information.
Hurtado v. California, 110 U.
S. 516.
In providing for a trial by a struck jury empaneled in
accordance with the provisions of the New Jersey statute, no
fundamental right of the defendant is trespassed upon. The manner
of selection is one calculated to secure an impartial jury, and the
purpose of criminal procedure is not to enable the defendant to
select jurors, but to secure an impartial jury.
"The accused cannot complain if he is still tried by an
impartial jury. He can demand nothing more.
Northern Pacific
Railroad v. Herbert, 116 U. S. 642. The right to
challenge is the right to reject, not to select, a juror. If from
those who remain an impartial jury is obtained, the constitutional
right of the accused is maintained."
Hayes v. Missouri, 120 U. S. 68,
120 U. S.
71.
Page 175 U. S. 176
Due process and equal protection of the laws are guaranteed by
the Fourteenth Amendment, and this amendment operates to restrict
the powers of the state, and if trial by a struck jury conflicts
with either of these specific provisions, it cannot be sustained. A
perfectly satisfactory definition of due process may perhaps not be
easily stated. In
Hurtado v. California, 110
U. S. 537, Mr. Justice Matthews, after reviewing
previous declarations, said:
"It follows that any legal proceeding enforced by public
authority, whether sanctioned by age and custom, or newly devised
in the discretion of the discretion of the legislative power in
furtherance of the general public good, which regards and preserves
these principles of liberty and justice, must be held to be due
process of law."
In
Leeper v. Texas, 139 U. S. 462,
139 U. S. 468,
CHIEF JUSTICE FULLER declared
"that law in its regular course of administration through courts
of justice is due process, and when secured by the law of the
state, the constitutional requirement is satisfied."
Within any and all definitions, trial by a struck jury in the
manner prescribed must, when authorized by a statute valid under
the Constitution of the state, be adjudged due process. A struck
jury was not unknown to the common law, though, as urged by counsel
for plaintiff in error, it may never have been resorted to in
trials for murder. But if appropriate for and used in criminal
trials for certain offenses, it could hardly be deemed essentially
bad when applied to other offenses. It gives the defendant a
reasonable opportunity to ascertain the qualifications of proposed
jurors and to protect himself against any supposed prejudices in
the mind of any particular individual called as a juror. Whether
better or no than any other method, it is certainly a fair and
reasonable way of securing an impartial jury, was provided for by
the laws of the state, and that is all that due process in this
respect requires.
It is said that the equal protection of the laws was denied
because the defendant was not given the same number of peremptory
challenges that he would have had in a trial before an ordinary
jury. In the latter case, he would have been entitled under the
statute to twenty peremptory challenges, but when a struck jury is
ordered, he is given only five.
Page 175 U. S. 177
But that a state may make different arrangements for trials
under different circumstances of even the same class of offenses
has been already settled by this Court. Thus, in
Missouri v.
Lewis, supra, in certain parts of the state, an appeal was
given from a final judgment of a trial court to the supreme court
of the state, while in other parts, this was denied, and it was
held that a state might establish one system of law in one portion
of its territory and a different system in another, and that, in so
doing, there was no violation of the Fourteenth Amendment. So, in
Hayes v. Missouri, supra, it appeared that a certain
number of peremptory challenges was allowed in cities of over
100,000 inhabitants, while a less number was permitted in other
portions of the state. It was held that that was no denial of the
equal protection of the laws, the Court saying, page
120 U. S.
71:
"The Fourteenth Amendment to the Constitution of the United
States does not prohibit legislation which is limited either in the
objects to which it is directed or by the territory within which it
is to operate. It merely requires that all persons subjected to
such legislation shall be treated alike, under like circumstances
and conditions, both in the privileges conferred and in the
liabilities imposed."
It is true that here there is no territorial distribution, but
in all cases in which a struck jury is ordered, the same number of
challenges is permitted, as similarly in all cases in which the
trial is by an ordinary jury. Either party, state or defendant, may
apply for a struck jury, and the matter is one which is determined
by the court in the exercise of a sound discretion. There is no
mere arbitrary power in this respect, any more than in the granting
or refusing of a continuance. The fact that in one case the
plaintiff or defendant is awarded a continuance and in another is
refused does not make in either a denial of the equal protection of
the laws. That in any given case the discretion of the court in
awarding a trial by a struck jury was improperly exercised may
perhaps present a matter for consideration on appeal, but it
amounts to nothing more.
Perceiving no error in the record, the judgment is
Affirmed.
MR. JUSTICE HARLAN concurs in the result.
