40 How. Pr. 428 | N.Y. Sup. Ct. | 1870
This action was tried at the circuit court, held in Erie county in the month of October, 187 0,
This position is supposed to be sustained by the provisions of the act passed on the twenty-seventh of April, 1870 (Laws of 1870, vol. 1, 952-3). By that act power was conferred upon circuit courts and courts of oyer and terminer to draw additional jurors, not exceeding thirty-six in number, whenever the attendance of a greater number was required than the laws previously relating to that subject had provided, should be drawn and summoned. When that authority is made use of for the purpose of supplying the requisite number of jurors, the statute peremptorily required that the additional jurors shall be drawn from the box containing the jurors from which the petit jurors for the county partnership ; that he should have the entire and exclusive are drawn. And the jurors to be drawn from it are to be drawn by the clerk in the presence of the court, and after-wards summoned by the sheriff at least two days before the time when their attendance is required.
But while this authority is complete, and ample for all ordinary emergencies, it has not been rendered mandatory upon the courts. This appears by the phraseology made use of in the act. For that does not require that additional jurors shall be secured under its provisions, but merely provides that they may be so procured. Its object appears to have been simply to enlarge the powers previously con
This act contains no repealing clause whatsoever, and no allusion to the laws previously relating to the same subject. And it is in no way in conflict with either of such laws, as it has been already construed. For that reason it cannot be allowed to produce the repeal of either of those laws by implication. When a law is enacted, it is to be presumed that the body enacting it has in mind all the laws already existing relating to the same subject. And if the intention existed of changing or repealing such laws, either wholly, or partially, that such intention would be expressed in terms. Where that has not been done, the later act is not allowed to repeal the former, unless the
A construction of the act of 1870, which should render it mandatory and exclusive, would be attended with such a degree of inconvenience as to render the administration of justice impracticable in all those cases where any considerable portion of the public had pre-judged the merits of the controversy. For this act limits the number of jurors which may be drawn under its authority to thirty-six, while causes not unfrequently employ the attention of the courts where a much larger number of additional jurors are required to draw the number necessary for the purpose of forming a single jury. This circumstance of itself supplies a very cogent reason in support of the construction already given to this act. That construction should certainly be adopted when it is found to be consistent with the language of the law, which will render it useful in the administration of justice, rather than the one which would convert it into a source of embarrassment in the very proceeding it was designed to facilitate.
Under this construction, the presiding justice at the circuit had the power to order the additional jurors to be drawn from the city box, under the act of 1861, as he in the exercise of his discretion deemed that to be the most expedient course to be then pursued. By that law, the clerk has been required to provide a box, in which the names of all persons selected and returned as suitable persons to serve as jurors in the city or town where the courts are appointed by law to be held, are to be deposited. And from that box, the court may direct the sheriff in its presence to draw such a number of names as shall be suffi
This was evidently the act under which the court intended to and did proceed in the present instance. For the jurors required were directed to. be drawn from the city box, to appear the next day before the court. And this order was substantially complied with, for it appears that the additional jurors were drawn from that box by . the clerk and the sheriff, in pursuance of its direction. The circumstance that the clerk aided the sheriff in the discharge of this duty, can in no manner be allowed to impair the regularity of the proceeding.
When the additional jurors were drawn, the name of John Fleming who was a qualified juror residing in the fourth ward, and returned as such, was found to be among them •> and he was required to be summoned as one of such jurors for the court. But the officer who was charged with the performance of that duty, on account of some unexplained reason, failed to summon that person, and in his place summoned a person of the same name residing in the first ward of the city, who constituted one of the panel that tried the present action. This substitution of one person in place of another by the officer, who was directed to summon duly the persons who had been drawn, undoubtedly constituted a gross violation of duty on his part. But that of itself is not sufficient to render the verdict, afterwards rendered by him, and the other eleven jurors who were regularly summoned and drawn, invalid. To produce that result, it should have been shown that the plaintiff was actually injured or prejudiced in his rights by this misconduct of the officer, nothing indicating that such was the fact, has been presented by the papers produced in support of this motion. ' The rule upon that subject, in the case of the People .agt. Hansom, was stated to be, e‘ that any, mere informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be a suffi
This case differs from that of The King agt. Tremaine (16 Eng. Com. Law, 318-19), in the circumstance that the person who there took his seat in the jury box, when another and different person was named and called, had not in fact been summoned to attend the court as a juror. And particular emphasis is given to that circumstance by Sutherland, J., in reviewing the very similar case of Hill agt. Yates (12 East., 229), where a conclusion was reached which is somewhat at variance with that declared in The King agt. Tremaine. (7 Wend., 424). In both those cases the person whose presence was complained of, fraudulently Imposed himself upon the court, as the person who had been summoned by the officer. But in the present case, the person was summoned, and appeared before the court in pursuance of the summons. As between himself and the public authorities, his attendance was .regular. It was the fault of the officer not of the person complying with the summons, that he presented himself before the court and became a member of the panel in this cause. And under the principle already mentioned, the verdict for that reason cannot be disturbed, see also to the same effect, Cole agt. Perry (6 Cow., 584; 3d R. S., 5th ed. 723, sub. 14 of § 7).
The remaining ground upon which the motion to set aside the verdict has been placed is, the fact that the John Fleming who was summoned and drawn upon the jury, was at that time an unnaturalized alien. By a statute of this
Hence, the verdict of a jury will not be set aside because one or more of the jurors did not possess all the qualifications required by law, in order to render them competent to serve. Upon this subject, Sutherland, J., in the case of the People agt. Jewett (6 Wend., 388-9), declared his conclusion to be that, 11 a verdict either in a civil or criminal case, would not be set aside merely on the ground that one or more of the jurors had not the property qualification required by law. It very frequently occurs that such mistakes are made in the panel and jurors undoubtedly sometimes serve without the requisite legal qualifications. But if the objection is not raised when the jury is drawn, the parties are concluded although the fact may not have come to their knowledge until after the trial.” In the case of
Any different rule would introduce very great instability, and uncertainty in the administration of the law. If the present motion could succeed, the court with equal propriety could be asked to set aside every verdict in criminal and civil causes, rendered at the courts where this man was a juror, and in which he concurred. And the same result would attend the trial of causes where tales jurors may be summoned by the sheriff, either from the bystanders, or the county at large, if an unnaturalized alien happen to be found among the number. For the courts still possess the power of supplying jurors in that manner notwith standing the peculiar phraseology of the act of 1861, vol. 1, laws of 1861, 1282-3.
In addition to the reasons already assigned, the legislature has provided that ^the court shall in every stage of action, disregard any error or defect in the pleadings, or proceedings which shall not affect the substantial rights of the adverse party” (Code § 176). Mo such right was affectedby the irregularity complained of in this case, for the controversy was heard and decided by the requisite number of jurors.
The result of these various considerations is that the motion to set aside the verdict must be denied, with costs.