2 Port. 100 | Ala. | 1835
Lead Opinion
The prisoner, Boyington, was indicted in the Circuit Court of Mobile county, for the crime of murder, alleged to have been committed on the body of one Nathaniel Frost. After the indictment had been found •against the prisoner, charging him by the name of Charles Boyington, he pleaded in abatement that ho was Known and called by the name of Charles R. S. Boyington, which was his proper name, and not that of Charles Boyington, &c. To this plea the Solicilof filed a replication, taking issue thereon.
This issue, on the 15th day of November, 1334, (being a day of the term of the Conrt,) was submitted to the jury, who returned a verdict against the prisoner that his plea was untrue.
Two days thereafter, the prisoner filed his two other pleas in abatement.
1.. That George Davis, jr. one of the grand jury that found the indictment against him, was not a citizen of the United States of America, or of any one of the same, but a subject of the Kingdom of Great Britain and Ireland, and had never been na-turalised.
2. That one C. Waldo, another member of the same grand jury, previous to his being elected and sworn, had formed and expressed an opinion respecting the prisoner’s guilt or innocence, by saying, if ho should be on the jury to try him, he would bang him.
These two latter pleas, on motion of the Solicitor, were, by the Court, stricken out, as being illegal and
At the trial, however, the presiding Judge reserved for the consideration of this Court, as novel and difficult, the question, whether or not there was > error in' the decision of the Court, ordering the two pleas, as-stated, to be stricken out. ' ■ ;
' This, alone,'is the question presented for the consideration and decision of this Court.
No objection is .made to the sufficiency or regularity of the record, other than as mentioned. The grand jury appear to have been selected by the agency, and under the inspection of the judge of the county court,- and commissioners of roads and revenue, together with the clerk and sheriff, in the mode prescribed by the statute ; and the indictment purports to have been found by sixteen “good and lawful men-of said county, impanelled, sworn and charged,” &c.
Whether the plea in abatement, on the ground of the alleged misnomer, (in as much as it related alone to the initials of the middle name, affecting neither the Christian or sir name of the prisoner) presented-a material issue? and whether, if considered material or immaterial, the fact of its having been pleaded, and found against the prisoner, could affect his right to the benefit of any subsequent plea in abatement, is a question which, u'ndpr the views we have taken of the other points in the case, is unnecessary to he examined in arriving at a decision of it. .
In reference.to the question reserved, I consider it a well established principle of the common datv, that grand, as well as - petit jurors, must be probi ei legales
By the statutes of this state, these disqualifications are not expressed; it is only provided that, “No per* son under the age of twenty one years, or above the age of sixty, nor any person continually sick, or who may be diseased at the time of the summons, nor any person who has been convicted of any felony, perjury, forgery, cheat, or conspiracy, or offence; (crimen falsi,) shall be summoned on a jury. ”
But, it is necessary to observe, that as early as the 11th year of the reign of Henry IV, an English sta-> tute was passed, reciting in the preamble, that extensive injustice and oppression had arisen to the lawful liege people of the King, from inquests taken at-Westminster, by persons named to the justices, without due return of the sheriff; of which persons, some were outlawed, and others had fled for refuge to sanctuary for treason and felony; therefore, it was declared, for the ease and quiet of the people, that indictments so found should be revoked, annulled and for nothing held; and that thereafter, no indictments should be made, but by the King’s lawful liege people, duly summoned by the proper officer; and that indictment otherwise found, should also “ be void, revoked, and forever holden for none.''
At a subsequent period in the 3d ef Henry another act of Parliament passed, directing that all panels of grand jurors to be returned by the sheriffs and their ministers before the justices of jail delivery, or justices of the peace, whereof one to be of the quorum, in their open sessions, should be reformed by putting to and taking out of the names of the persons so impanelled, by the discretion of the justices, and that they should command the sheriffs to put other persons in the same panel, and when so reformed should be “ good and lawful.”
The English judicial decisions have farther ruled, that this latter statute does not take away the force-of that of 11 Henry XV, except so far as they are repugnant; and therefore, if any indictor be outlawed, or returned at the nomination of any person, contrary to the statute of 11 Henry IV, except of the justices, under their authority to reform the panel as aforesaid, the indictment may be avoided by plea, as in the former case.
Since the statute referred to, of Henry XV, pleas in avoidance of indictments, for objections to particular jurors, principally on the ground of outlawry, have, in many instances, been allowed in England; yet, much difficulty fas also been felt and expressed,
■ An eminent Jurist remarks on this- subject, “ that it was resolved in the Year Book of 11 Henry IV, by the advice of all the-justices, that one outlawed on an indictment of felony, may plead in abatement of it, that one-of the indictors was outlawed for .felony, &c. But it seems to be. the better opinion,, that this resolution is rather grounded on the statute of 11 Henry IV, which was made- in the -same term in which this- resolution was given, than on the Common Law; because it appears by the very same Year Book, that when this plea was first proposed, it was disallowed :■ from which, I suppose it. is collected, that the subsequent resolution was founded on the-authority of said statute, which .may be intended to have been made after the plea was disallowed, and' before the subsequent resolution, by which it was adjudged good. Yet, considering that the said resolution was given in the beginning of Hilary term, and that the Parliament that made the statute was not holden -before the beginning of the same term, and therefore, it is not likely the statute was so soon made ; and also,, considering that the said resolution was given by the advice of all the Judges, who seem to have been consulted about the validity of the plea above mentioned», at the Common Law, and takes no manner of notice of any statute, but only of the law in general, it -may deserve a question, whether such plea be not good at .Common Law.”
I have thus quoted the section at length, because I discover the question there suggested, has been uniformly. referred to as the authority for such pleas in abalement, and has. been the source.of.much doubt
As I have already shewn, the principle maintained by Baco7i, is, that the right in England, so far as it exists, was derived from the statute, and that, at Common Law, the exception can only be taken by challenge to the juror before indictment found. The principle is clearly recognised, by all who have treated of the subject, that it is the duty of the Court, if informed of any legal objection to a person about to be sworn on the grand jury, to exclude him ; also, it is the acknowledged privilege of all persons present, of those anticipating prosecutions, or others, as the friends of the Court, to point out the objection, and ■cause the exclusion of the juror.
Chitty
It also, appears,, that on the trial of the Shearers,.in Ireland,, in which the right claimed in this case, was brought in question, (but a decision of which was not considered necessary in disposing of that case,.) that Court did not consider the right to plead this, matter in abatement,, as having been established. Lord Carleton, in expressing the opinion of the Court, uses this language“ That a person being an alien is a good cause of challenge, I think is well founded, but whether-it can be taken advantage of by way of plea, I reserve my opinion.” Again, he says, “ that a. juror is- outlawed may be taken advantage of by plea- of avoidance of the indictment, but whether such plea is given by the Common Law, or depends on the statute of II Henry IY, is a question of some difficulty; that it was.passed about the same time with the case mentioned by Hawkins.'1'1 He further said, that “ From a manuscript note which he had made in the margin of his Hawkins, he perceived the statute received the royal assent in quindina Hillarii,. which was on the 27th or- 28th of January, and might, perhaps, have preceded the decision referred to by Hawkins.”
It appears, from a- review of the- authorities so far, that the existence of this right, at Common Law,, is at most, very doubtful; but that even if the principle was conceded, this right was allowed- while the law of England confided to the'sheriff and his ministers, the absolute and exclusive power and duty of nominating and. returning on the panel of the jury such persons
To shew more definitely the manner in which our juries are scrutinized and selected, reference may be had to the statute,
It is true, that the English statute referred to, of Henry IY, did not express the right to plead matters
From this declaration (the latter clause particularly) the conclusion obviously results, that such jurors as had been approved of and nominated by the justices should bo considered, in the language of the statute, “ good and lawful men,” so far at least, as to make their indictments valid and conclusive, if objection were not made before they were found. Then, the farther conclusion appears to me to be equally irresistible, that as our mode of selecting the jury is better guarded, our lists of jurors being subjected to a closer examination and purgation, than can be expected from the English mode of reforming theirs — on principle and authority, the right of pleading to the personal disqualifications of particular jurors, who
These views of the case are no less applicable to the 3d plea in abatement.
The matter of this plea — the formation and expression of a previous opinion by the juror against the prisoner, must rest on the same or a less valid ground of objection. As respects the difference, it is, on this occasion, only necessary to remark, that the expressions imputed to the juror Waldo, might not be considered conclusive of his incompetency. Had an examination been had on challenge of the juror, or in any other proper manner, it might have been found that the expression of the juror was intended, and understood only as a matter of levity or jest, or that the juror was prompted to it by mere rumor, and had either retracted the expression, or was ready to do so ; that he had no knowledge or satisfactory information of the facts — no enmity or prej udice against the prisoner, and that he felt his mind perfectly open to conviction upon legal evidence.
But, without pursuing this point farther, I proceed to a further notice of the right, in general, to plead in abatement, the incompetency of particular grand jurors.
Questions of this kind, appear to have been of very rare occurrence in the United States. But, in the case of The Commonwealth vs. Smith,
Sewall, Judge, in delivering the opinion of the Court, said, “ Whether an exception of this kind is
In U. States vs. Coolidge,
In reference to the case last reviewed, it will he observed, that it furnishes no principles inconsistent with those previously advanced; it does not question the competency of any member of the grand jury, or sanction the plea in abatement for any such exception. The Court only proceed, in a manner analogous to setting aside verdicts of petit juries', to quash or avoid an indictment for the improper or illegal conduct of the grand jury in finding it, not upon evidence of sworn witnesses, but upon declarations without the sanction of an oath. This would, doubtless, have been a sufficient ground for a new trial after verdict, if not sooner discovered.
Other cases have occurred 'in Massachusetts, on which the prisoners’ counsel place more reliance. In Commonwealth vs. Parker & al.
The prisoners’ counsel relied upon the doctrine of Hawkins, in reference to the statute of 11 Henry IV, which I have already quoted : also, on a case of The Commonwealth vs. Davis in MS. drawn up by Dana, and certified by the Chief Justice of the Common Pleas, who was of counsel in the case. The facts of this latter case appeared to he, that Davis was con
The Court, in deciding the case of Parker et al. on the objection to Wythe as a juror, observed, that the precedents in which such am objection has prevailed, have generally been, cases where the juror was not qualified to serve. Then, noticing the statute of Henry IY, and Hawkins’ reference to it, the Court proceeds to say, “ The mischief was, that persons were put on the jury who were not qualified to serve— they were outlawed, &c. and had no right to be on the jury. The casé referred to, of The Commonwealth vs. Davis, proceeds on this same principle,” ■&c. But, “ the present case is very different. Here-, there was no objection to the qualifications of the juror. He was entitled to be drawn as a grand juror, and he was drawn, and had notice and attended, and was sworn and allowed to act with the grand jury.” This opinion further reinarles — “ It is objected, that there is a difference between traverse jurors and grand jurors, because traverse jurors may be challenged. The books say, that grand jurors may also be challenged. But, there is a difficulty in the case, for a bill may be found against a person who has not been recognised, and who has no opportunity to challenge.
It may be remarked, with • respect to the case of Davis, (admitting it to be correctly reported,) that it, in no degree, conflicts with the principles I have maintained. Lock, whose name was foisted into the return, having never been chosen on the grand jury, surely could not, in fact, or legal contemplation, have the slightest claim to the character of a good and lawful juror, but the return of the venire, in reference to him, had been grossly falsified, and of course vitiated.
Parker's case is entitled to little, if any more, consideration. The juror’s authority to serve, was deemed sufficient, on objection merely, that he, did not appear from the venire, to have been summoned. It is true the Court intimated, a doubt of the correctness of the remarks in Smith's case, but decided nothing in reference to this question ; nor do they appear to have investigated the subject, to have considered the effect of the English statutes, to which I have referred, or the influence due to statutory reformations or pur-gations of jury panels, such as provided in England, or in this or any other State of the Union. I consider the law sufficiently settled to exclude the right to except to the personal qualifications of the persons selected, summoned and sworn on the grand jury, as prescribed by statute, after indictment found, and to
The admitted privilege of any and all persons, to challenge incompetent jurors, at any time before indictment found, is sufficient to prevent all material abuses of this kind. If, however, the indictment be
It would certainly involve great inconsistency, -to maintain, that the circumstance of a grand juror having been an alien, should be adjudged sufficient to avoid an indictment after found, when, if one equally objectionable, serve on a petit jury, which returns.a final conviction in either a civil or criminal case, (the fact being unknown until after the trial,) the verdict can not, for this cause, be disturbed. The latter, I understand to be the true principle in either case ; that such objection can only be made by challenging the juror before the trial.—(See Hollingsworth vs. Duane.
Notwithstanding we have neither the information of facts in evidence, or any legal authority to investigate the guilt or innocence of the prisoner ; but only to determine the isolated questions of law, reserved by the record for our revision, it is ever extremely painful to decide against the accused, on a question vitally affecting him; but Judges can exercise no mercy or discretion, beyond their opinion of the law.
In the opinion of a majority of the Court, the judgment must be affirmed.
The question which has been referred to this Court, by the Judge who tried the prisoner, is simply this : can he, after the indictment has been found, returned into Court, accepted and filed, plead in bar, or
The first case in which we find only attempt was made to plead such matter, is referred to by Hawkins,
The decision of this Court, now pronounced, adverse to the allowance of the pleas of alienage, &c. after indictment filed, I apprehend to be, the doctrine of the common law, whic^i, both.in civil and criminal matters, is in full force in this state, so far as not incompatible with the genius of our political institutions, unless altered by statutory enactment, of our own legislature. The application of the principle, is, I think, entirely obligatory upon us, and if it be unwholesome. which I am far from conceding, the ap-l
I concur in the affirmance of the judgment, with the Chief Justice.
Bacon's Abr. Juries A.
Aik. Dig. 295.
Bacon’s Abr. Juries A.
Hawk. book 2 ch. 25, § 33.— Bac. Abr. Juries A.-1 Ch. Cr. Law, 252.
Idem.
Bacon’s Abr.
4 Hawkins, book 2, ch. 25. § 18.
Crim. L. 1 v. 307, ch. 6.
Aik. Dig.298.
Hawk. book 2. ch. 25, s. 33.
9 Mass. Rep. 107.
2 Pickering, 550.
9 Mass. Rep. 107.
2 Gallison, 354.
Dana's MS. See page 131 of this volume.
4 Dallas 352.
Book 2, c. 25 sec. 18.
Dissenting Opinion
dissented.
I am not able to concur in the opinions just delivered, I think the plea of alienage should have been allowed, and that too, notwithstanding the plea of misnomer.
That plea should not, I think, have been received. It is not a good plea at Common Law, in a case of felony ; because the proceeding in such case is against the person of the prisoner, by whatever name he may be distinguished.
By our statute, a “grand jury of a competent number of good and lawful men, of the county where the Court is held, shall be returned and empannelled agreeably to law, to attend each term of the Circuit Court.”
This right, so far, it is admitted, exists at Common Law, and Chitty
This statute, after reciting that inquests had been taken at Westminster, by persons not returned by the sheriff; by persons outlawed; by persons who had fled to sanctuary for treason and felony, declares that all such indictments so made shall be null and void, and for nothing held. This statute does not embrace alione, and no caso can be found in England, where the question has boen made. It could not, of course, arise on any one of the other qualifications since the statute, and we are left to decide the question, more upon principle than authority.
The case of the Shearers, alluded to, shews, that the Judge there had his doubts, as well as Hawkins. The only case to be found, of á decided opinion, is that in 9 Mass. R. This was a dictum of Justice Sewall, and the reason, to wit, that to allow the plea would contradict the averment in the indictment, that “ the jurors mere good and lawful men," does not seem to be entitled to much weight. Its correctness was questioned by the Court in a caso in 2d Pickering.
In England, by the statute of the 3d Henry VIII,
It is true, our laws regulating the formation, and selection of juries, is more guarded than in England. It requires, every two years, a list of free-holders and house-holders to be returned by the sheriff to the circuit court clerk, which are placed in a box, and the panel is drawn from this box by the sheriff and clerk, and if it appear that a person, whose name is drawn, has removed from the county, or is deceased, his name shall not be included in the panel, but no other power is given to reform the panel: aliens and felons may be there, and may be returned. In. this particular., the power does not extend as far as it does in England.
Is our law then, so guai'ded that no objections ought to be allowed after bill found ? If, indeed, the presumption is, that the law has taken sufficient care of the interests of those who may be indicted, (and every man in the community is liable to be,) why is an exception to be allowed before bill found ? Yet it is clear, that any one of the objections known to the Common Law, may be made by any person as ami-cus curias, before bill found, and the person objected to will be discharged.
If the plea is hot allowed, this consequence follows, that a person, before bill found, may, upon sugges
In England, by statute, a person who procures himself put upon a jury, or who has been put on at the request of another person, will make the bill void, though he may be qualified in other respects, and though there may have been a competent number of persons beside him on the jury,’ who were qualified, and who concurred in finding the bill.
Tho distinction taken, as to the time when an exception can be made, precluding it after an action by the grand jury, and the analogy which is áttempted to be drawn between this case, and that of exceptions to the petit jury, which are not allowed after verdict, does not-hold, The'analogy fails when the reason fails. In the case of tho grand jury, the defendant has never been called to except, until bill found. In the case of the petit jury, he has had his day for objection and selection. There must be an end to the prosecution ; and when the1 party has had his day of objection, he must submit.
The true and safest rule, to my mind, is this, that when a bill has been found by persons who, by the Common 'Lam, are disqualified, it should be held void upon plea,, and the defendant should not 'be held to answer an indictment proceeding from so vicious a source. By adopting the other rule,, the act is made to sanctify the m'eans, and the party looses íiis. tight to- object, for not having done sq before he
Even in a civil proceeding, a person is permitted to except to the illegality of a proceeding, until he waives the right; much more then should this right be held sacred in a criminal case, where it is' said a man cannot waive his rights.
But, public policy and convenience, it is said, forbid this proceeding. What principle of public policy can be more sacred than that the sources of justice should be pure? and wherein is the inconvenience greater after bill found, than before ? A bill is found to-day — the defendant is put upon his trial to-morrow — he can alledge nothing against the grand jury, when the next entry on the minutes may be an order discharging the same jury, at the suggestion of any •idle bye-stander who may chance to come into Court, and against whom no .charge is made. Ought not the Court rather to say, that indictments found by persons not “ good and lawful men,” shall be “ revoked, annulled, void, and holden for none forever.” If I am to be put on trial for my life, let my accusers, at least, be boni et legales homines.
The want of authorities in favor of the plea, is suggested as an argument against it.' I infer the opposite. There are cases so plain, that precedents can not be found shewing their having been contested. The point could not be made in an appellate Court, unless, as in this case, the plea was denied. It is hardly possible that a case never occurred, but it is possible — may be quite probable, that, the plea was never before denied.
Indiclments hare boon quashed, and nolle prose-
In 2d Mason, J udge Story quashed an indictment because’ it appeared on trial, that á man had given evidence befpre a grand jury, who had (though not a Quaker,) been affirmed, he having conscientious scruples against taking an oath.
In 2d Pickering, a 'bill was quashed, because found by a person, one of the grand jury, who had been substituted for one of the regular panel, as a matter of convenience to the regular juror; and I presume hundreds of cases have occurred where the prosecuting officers have entered nolle prosequi’s, on suggestions of irregularities, not even affecting the jury. Hence the want of decided cases to avail us in the investigation. The inconvenience'is trifling — it is preferred even in pleas of misnomer. A new bill can be found. If necessary, the jury’can be reformed, and the pro-, ceedings can be had without a suggestion of a defect.
By this course, and by always listening to any suggestions which will sheiY, that the grand jury must always be not only pure, but above suspicion, you remove the temptation to corruption, and keep it, what it was always intended to be, the grand inquest of the county, composed of £: good and lawful men — as ready to reject unfounded charges, affecting the life, liberty, and character of the citizen, hs it will be to detect crime, -whenever it exists. Let the Sources from 'whence justice emanate, be always pure, and the law-can look crime in the face, and punish it without á blush. I cannot imagine, that a rule which, for all practical purposes, has been exploded in England, since the time of Henry IV, and when it is doubtful whether it ever existed at the Common Law, is fit to be applied under the liberal and enlightened policy of the present age.
3 Bacon's In. G. 2.
5 Johng
Aik. Dig.243.
1 Chitty’s Cr. Law, 207.-3 Bacon’s, Abr. 725.
3 Bac. Abr. 725.
1 Cr. L. 207.
Hawk.book2 ch. 25, § 18.
3 Bacon's Ab. 727.