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, 294, 26 L. ed. 1090, 1095; Hallinger v. Davis, 146 U.S. 314, 319, 36 L. ed. 986, 989, 13 Sup. Ct. Rep. 105; Forsyth v. Hammond, 166 U.S. 506, 41 L. ed. 1095, 17 Sup. Ct. Rep. 665.
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, 8 L. ed. 672; Fox v. Ohio, 5 How. 410, 12 L. ed. 213; Twitchell v. Pennsylvania, 7 Wall. 321, 19 L. ed. 223; United States v. Cruikshank, 92 U.S. 542, 552, 23 L. ed. 588, 591; Spies v. Illinois, 123 U.S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Re Sawyer, 124 U.S. 200, 219, 31 L. ed. 402, 408, 8 Sup. Ct. Rep. 482; Eilenbecker v. Plymouth County Dist. Ct. 134 U.S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424; Davis v. Texas, 139 U.S. 651, 35 L. ed. 300, 11 Sup. Ct. Rep. 675; McElvaine v. Brush, 142 U.S. 155, 35 L. ed. 971, 12 Sup. Ct. Rep. 156; Thorington v. Montgomery, 147 U.S. 490, 37 L. ed. 252, 13 Sup. Ct. Rep. 394; Miller v. Texas, 153 U.S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874.
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, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148; Iowa C. R. Co. v. Iowa, 160 U.S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. '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, 31, 25 L. ed. 989, 992.
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, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292.
In providing for a trial by a struck jury, impaneled 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 P. R. Co. v. Herbert, 116 U.S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590. 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, 71, 30 L. ed. 578, 580, 7 Sup. Ct. Rep. 350.