24 Wis. 57 | Wis. | 1869
The plaintiffs in error, having been indicted for a riot, were tried and convicted. They moved for a new trial, upon affidavits showing that two of the petit jury which convicted them were on the grand jury which found the indictment, and that the fact was not known to them, or their counsel, until after the verdict. The motion was overruled, and they alleged exceptions, which were allowed and signed by the judge.
This court decided in the case of The State v. Vogel & Mollerus, 22 Wis. 471, that a similar motion in a criminal case, upon the ground that one of the petit jury was an alien, was properly overruled, whether the fact was known to the defendant or not before trial. But this was for the reason that the objection was one of a merely technical legal disqualification, and did not raise any suspicion against the fairness and impartiality of the jury. For this reason it was held, that a party who neglected to ascertain the fact by inquiring of the jurors at the time they were called, should not be allowed to raise such an objection after verdict. But such a rule
The only point as to which there is room for controversy is, whether the prisoners should be held to have lost their right to object, by reason of the fact that their counsel did not ascertain the objection, either by inquiring of the jurors or examining the records, and make it a ground of challenge. It has been held in some cases, that where the fact was actually known to the prisoner or his counsel at the empaneling of the jury, the objection was waived if the juror was not challenged. It has also been held that where the indictment, with a copy
The question therefore is, whether the mere neglect of counsel to ascertain the fact before trial is to defeat the right ? The affidavits show they had no knowledge in fact. They are not chargeable with knowledge by reason of the names of the objectionable grand jurors appearing on the indictment, for our law requires only the name of the foreman to be indorsed, and none of the names of the grand jurors are inserted in the caption. In this respect it is like the law of Virginia, which was made the ground of distinguishing the case of Dilworth v. The Commonwealth, 12 Grat. 689, from other cases, where the names of the grand jurors appear on the bill. There cannot be said to have been any gross negligence. To have inquired would have been prudent and diligent. But to omit to do so is not such negligence as ought to preclude the prisoner from objecting to be tried by a
On looking into tRe record, it appears tRat a writ of error was issued, and tRe record containing tRe exceptions was certified as a return to tRat. No final judgment Raving been pronounced, a writ of error would not lie. But tRe exceptions, being properly certified and returned, Rave been considered. And tRe exception to tRe overruling of tRe motion for a new trial must be sustained, and tRe cause remanded with directions to tRe circuit court to grant tRe motion.
By the Court.— Ordered accordingly.