I concur in the conclusion that the judgment below should be reversed for the reason secondly stated in the majority opinion. I consider, however, that there was not error in the overruling of the attempted peremptory challenge.
There is no constitutional provision which requires the granting of peremptory challenges to defendants in criminal cases. Where that is so the constitutional right of defendants to trial by an impartial jury is not infringed by the statutory requirement that in cases where there are several defendants they shall be treated as a single party for the purpose of peremptory challenges. Stilson v. United States, 250 U.S. 583;63 L.Ed. 1154; Schaefer v. United States, 251 U.S. 466;64 L.Ed. 360. The question therefore resolves itself into one of statutory construction. The provision of section 81, Criminal Procedure Act, chapter 237, Pamph. L. 1898, was as follows:
"Upon the trial of any indictment where twenty peremptory challenges are not allowed, the defendant or defendants and the attorney-general or the prosecutor of the pleas shall each be entitled to challenge peremptorily ten of the general panel of jurors summoned and returned by the sheriff or other officer; and upon the trial of any indictment in cases where the defendant is entitled to twenty peremptory challenges, the attorney-general or prosecutor of the pleas shall be entitled to challenge peremptorily, and without assigning any cause, twelve of the jurors returned for the trial of such indictment, and upon the trial of any indictment for which a struck or foreign jury shall be summoned and returned, *Page 267 five peremptory challenges each shall be allowed to the defendant and to the state; challenges in all cases may be made at any time before the jury is sworn; all challenges to the array or to individual jurors, for any cause whatever, shall be triable by the court."
The interpretation of that section given by Mr. Justice Reed in writing the opinion for this court in State v. Moore,75 N.J.L. 619, was as follows:
"This construction of the statute is put upon the legislative language, namely, `The defendant or defendants and the attorney-general or the prosecutor of the pleas shall each be entitled to challenge peremptorily ten of the general panel.'Pamph. L. 1898, p. 896, § 81. When two or more are on trial jointly, it would seem that they must join in their challenges. The statute obviously does not mean that one shall be limited to five challenges and the other to five challenges, or that the first defendant who challenges shall defeat the right of his joint defendant to challenge. That defendants shall have the right to challenge ten means that they collectively must challenge or assent to the challenge, and that each shall have a right to say whether a challenge shall be interposed."
That was said of a jury drawn from the general panel. In the instant case there was a struck jury, but the reasoning of the opinion would carry through to that situation. By chapter 220,Pamph. L. 1930, section 81 was changed in certain other respects, but the provision regarding challenges under struck juries was preserved except that the word "defendant" was made to read "defendant or defendants." The 1937 Revision, 2:92-8, reverted to the reading of the 1898 statute, supra, namely:
"Upon the trial of any indictment for which a struck or foreign jury shall be summoned and returned, five peremptory challenges each shall be allowed to the defendant and to the state."
A further provision in the Revision, 1:1-2, provides that "whenever, in describing or referring to any person, party, * * * any word importing the singular number * * * is used, the same shall be understood to include and to apply *Page 268 to several persons or parties as well as to one person or party * * *." I take it that the word "each" is used collectively, in the one instance referring to "the defendant or defendants" and in the other instance to the "state." If it had been the purpose of the legislature to alter the meaning thus given by judicial construction, the change would have been more clearly stated. When a statutory provision is re-enacted in the same language, the later act is presumed to have adopted the earlier one with the meaning which has already been ascribed to it by judicial construction. Cook v. Bennett Gravel Co., 90 N.J.L. 9;Loudon v. Loudon, 114 N.J. Eq. 242, 250; State v.Moresh, 122 N.J.L. 77, 79.
Moreover, it is a fair presumption that a rearrangement of a statute, done under the authority of chapter 73, Pamph. L. 1925, to "revise, simplify, arrange and consolidate all the public acts" and authenticated (R.S. 1937, p. XIII) by the commission, along with all the extant general public acts, as "revised, simplified, arranged and consolidated" pursuant to that statute, and enacted without change by the legislature as an integral part of the revision, was, unless there is convincing reason to the contrary, intended to retain the legal effect of the old law.
I am authorized to say that the Chancellor, Justices Parker, Donges and Heher, and Judge Wells concur herein. Judge Dill concurs in the remarks concerning the peremptory challenge.
For affirmance — DILL, J. 1.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 15. *Page 269