The indictment in this case contains twenty-two counts, some charging the defendant with forging, and others with uttering, discharges for money, payable from the treasury of the town and county of Nantucket. The defendant pleaded in abatement to the indictment, and upon the facts which appeared at the hearing he asked the court to rule, that, “ by reason of bias and interest, a grand jury drawn and made up from the inhabitants of the town and county of Nantucket was not competent to make a presentment for crimes against the county or the town treasury.” The court refused so to rule, and ruled that the presentment was valid.
We may assume that the defendant is right in his contention that objections to an indictment on account of the disqualification of a grand juror may be taken when the defendant is first called' upon to plead to the indictment; for, under our practice, it commonly happens that he has no opportunity to make his objection earlier. See Commonwealth v. Parker,
The general rule, that judges and jurors should not be interested in a controversy which they are called upon to settle, is founded upon familiar principles of justice. But there are some kinds of interest which are too minute and too remote to be regarded. Every citizen of the Commonwealth is interested in the enforcement of the laws. But if that interest disqualified him from sitting as a juror, or otherwise participating in a trial, no criminal could be punished. From the necessity of the case,
In the case at bar, the inhabitants of Nantucket had no direct pecuniary interest in the proceedings. The town and county treasury could not be in any way affected by the result of the prosecution. The judgment which might be rendered could not be used as evidence in a subsequent civil suit. They had no interest different in kind from that of all the people of the Commonwealth. We by no means suggest that a victim of a crime should ordinarily be permitted to sit as a juror to try a pei’son accused of committing it, for his feelings would be likely to be so aroused as to render him unfit for such a service. His relation to the matter under investigation would naturally lead him to form an opinion as to the. guilt of the defendant, or would induce bias or prejudice ; and if this appeared, he would at once be set aside as disqualified to serve as a juror. But the* crimes charged in this indictment were not against any of the persons who were upon the jury. They were committed against the town or county of which the jurors were inhabitants; and the bias, prejudice, or other kindred feeling, which might be expected in an individual who had suffered grievous wrong, would not be likely to exist in reference to. a crime against the public treasury.
Some of the inhabitants might be so far affected in their feelings as to be unfit for jurors. In respect to the traverse jurors, the defendant could have protected his rights in that particular by asking for an examination of them before they were impanelled. See Commonwealth v. Moore,
A direct financial interest stands on somewhat different grounds. Clark v.Lamb, 2 Allen, 396. Hawes v. Gustin,
In Connecticut v. Bradish,
Where a municipality has no direct pecuniary interest in a trial, but only such an interest as might result from the commission of an offence against its property, neither our Legislature nor the courts have been accustomed to treat its interest as affecting the qualifications of its inhabitants to sit as jurors. Statutes have been passed removing the disqualification of jurors
But this is not one of those cases, and the indictment in it could have been found, and the trial could have been had, in no other county than Nantucket. We are of opinion that our statutes must be held to be a legislative declaration that jurors residing in Nantucket, if otherwise unobjectionable, were competent to sit in the trial of it. The same considerations which induce us to hold that the inhabitants were not disqualified from sitting as jurors, apply with still greater force to the defendant’s contention that the officers of the town and county were disqualified from acting in relation to the drawing and summoning of the jurors.
The defendant also asked the court to rule that the indictment was bad, and that the traverse jurors could not sit to try it, because the meetings of the inhabitants of the town at which the jury list was revised and at which the jurors were drawn were not legally warned. But it does not appear that they were not legally warned. There were proper warrants, seasonably issued, with a return of the officer upon each of them saying that he notified and warned the inhabitants pursuant to the warrant. The most that can be said in favor of the defendant’s contention is, that it does not distinctly appear by the returns that the postings were as long as they should have been before the respective meetings. But we are of opinion that, in a case of this kind, it is not to be assumed upon the evidence that the proceedings were illegal in this particular. Houghton v. Davenport,
The view which we have taken of the preceding questions makes it unnecessary to consider whether the defendant’s objec
Another objection to the indictment, raised by the plea first referred to, was that Andrew D. Winslow was not legally drawn as a grand juror, because his name was, by vote of the town, ordered to be stricken from the list of jurors prepared by the selectmen, and submitted to the town for revision. The fact here relied on was proved at the hearing before the judge; and it further appeared that, notwithstanding this, his name was placed or left in the box, and was drawn by the selectmen in response to the venire of the court, and was returned to the court, and he was sworn as one of the grand jury, and acted with them in their deliberations and in the return of the indictment. It has often been held in other jurisdictions, that an indictment found by a grand jury upon which a disqualified person is sitting is void; for it is nob certain in such a case that the indictment was found by twelve qualified jurors. The disqualified person may have been one of only twelve who voted for the indictment. 2 Hawk. P. 0. c. 25, § 28. United States v. Hammond,
How such, an indictment should be regarded is a question which we need not decide; for a distinction must be noted between a juror who is personally disqualified, and one who possesses all the requisite qualifications, but is irregularly and improperly drawn. The general rule is, that mere irregularity in the proceedings by which a juror gets upon the panel does not affect the validity of his action. Commonwealth v. Parker,
Another distinction which should be observed is that between the case of a juror chosen by a method wholly illegal and unwai’ranted, and one where the regular course of procedure is pursued in general, but is not strictly and properly followed. State v. Symonds, 36 Maine, 128, was a case of the former kind, in which the selection of talesmen for a grand jury was held to be without jurisdiction and wholly illegal, and the jurors were decided to be incompetent to serve. The difference between such a proceeding and a failure to regard some of the requirements of the law, where there is an honest effort to act under it, is referred to in United States v. Ambrose, 3 Fed. Rep. 283, a case which was very similar to the one at bar. Inasmuch as there was nothing to show that Winslow was disqualified to serve as a juror, or that his being drawn was anything else than an irregularity, we are of opinion that the ruling of the court upon this point was correct.
The only remaining exceptions relied upon are to the refusal of the judge to grant the first, fifth, ninth, eleventh, and twelfth requests for instructions to the jury. The several papers referred to in the indictment were sufficiently described as discharges for money. There was no variance. Upon an indictment for forging or uttering these papers, the circumstances in relation to the payment referred to in the requests were immaterial. The intent to defraud referred to in the statute may relate to a party who is not named in the instrument. Pub. Sts. c. 214, § 26; Pub. Sts. c. 204, § 1. Commonwealth v. Costello, 120 Mass. 358.
Exceptions overruled.