Commonwealth v. Dorsey, 103 Mass. 412

Commonwealth v. Dorsey

103 Mass. 412 | Mass. | 1869

Chapman, C. J.

The attorney general having challenged a juror under the provisions of the St. of 1869, c. 151, which gives him the right, on the trial of a capital offence, to challenge per*418emptorily five of the jurors from the panel called to try the cause, the prisoner objected that the Commonwealth had no right of peremptory challenge, because the statute is unconstitutional. The particular provision of the Constitution applicable to the case is the last clause of art. 12 of the Declaration of Rights, “ And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.” The jury referred to in this provision is what has been known as a petit jury, which consisted, by the common law, of “twelve good and impartial men of the neighborhood.” Bac. Ab. Juries. Undoubtedly the Constitution contemplated a jury of twelve men, who should be good and impartial. The neighborhood, in this Commonwealth, has always included the county. But it is not contemplated that they shall know the parties and the case beforehand, so as to try cases on their personal knowledge, as they formerly did. Schmidt v. New York Union Insurance Co. 1 Gray, 529, 535. On the contrary, they are to try causes on evidence produced before them, and should know so little of the case as not to have formed or expressed any opinion in regard to its merits, and should be free from bias or prejudice. But the method of selecting jurors is left by the Constitution to be regulated by legislative enactments; and these may be modified from time to time as the legislature shall think proper.

By the English law, from which the right of trial by jury is derived, a juror must have a certain property qualification; but this is not an essential feature of the institution, and may be modified. Jurors were selected to a certain extent by the sheriff, and this made his impartiality in respect to the causes to be tried very important. 3 Bl. Com. c. 23. But our Constitution has never been held to restrain the legislature from adopting better modes of selection. And in respect to the point before us, by the common law the king might challenge peremptorily without being limited to any number. This right has been restrained by several acts of parliament, and the later practice has been that the officer of the crown directs a person to whom he *419objects to “ stand by,” and he continues to do this without assigning any cause, till the panel is gone through. If a full jury cannot be obtained, they are then called again in turn, and he must then show cause. But in practice it gives the crown an extensive right of peremptory challenge. Mansell v. The Queen, 8 El. & Bl. 54. Bac. Ab. Juries. If the framers of the Constitution had intended to prohibit the legislature from conferring a. right of peremptory challenge on the government, their knowledge of the institution of trial by jury would have induced them to express that intent. Many changes have been made by legislative acts in respect to the qualifications of jurors, the methods of selecting and summoning them, and of forming a panel, which differ materially from the ancient practice, and it has not been supposed that the Constitution was violated by such provisions. It has been thought expedient to increase the number of challenges on the part of the prisoner to twenty-two. The experience and observation of the court have made it apparent that a limited power of peremptory challenge is important to the government in many instances, in order to obtain an impartial jury, and we see no ground to regard such a power as unconstitutional. The statutes and authorities cited by the attorney general show that the power of peremptory challenge on the part of the prosecuting officer exists in a large number of the states of the Union, and is upheld by the courts.

A witness, who was not an expert, was permitted, against the objection of the prisoner, to testify that certain hairs which were found adhering to the club mentioned in the bill of exceptions appeared to his naked eye to be human hairs, and another testified to his impression that they resembled the hairs of the deceased. The objection to this evidence rests upon the general principle that witnesses who are not experts cannot testify to their opinions, but are limited to statements of fact, and it is contended that this testimony is merely an expression of opinion. But there is a large class of facts in regard to which judgment or opinion is all that can be expressed. Such testimony is admissible in respect to the value of property and damage done to it. Vandine v. Burpee, 13 Met. 288. Walker v. Boston, *4208 Cush. 279. Dwight v. County Commissioners, 11 Cush. 201 Swan v. County of Middlesex, 101 Mass. 173. Also whether a horse eats well, travels well, and appears to be free from disease. Spear v. Richardson, 34 N. H. 428. And in Hackett v. Boston, Concord & Montreal Railroad Co. 35 N. H. 390, the court say that in most cases when a witness is examined as to distances, dimensions, weight or any quality of the matter in question, he cannot testify except by the use of language which necessarily implies his opinion. Many facts that we know through our senses are of this character. In testifying to the identity of a person, the statement often can be nothing more than belief or opinion. This is especially so when the person was seen in the night, or at a distance, or for a very short time. So as to the identity of one of his garments, or a fragment of a garment. So of footprints, animals and many other objects, and of the size or color of objects, the character and quality of objects or the value of property, or of sounds or noises. Handwriting is of the same character. See 1 Greenl. Ev. § 440, and cases cited. The question whether an object appears to be a human hair, or to resemble the hair of a certain person, is of the same character. There may be less certainty about it than if the testimony related to the face or some other part of the body, but the principle is the same. When other tests than the senses are to be applied to these subjects in order to gain knowledge that cannot be gained by common observation, but must be acquired by the application of special skill or learning, the testimony of experts must be resorted to, yet that evidence does not render the testimony of common observers inadmissible, so far as such observation can go. For example, in the present case, any witness could state that the deceased appeared to be dead; that there appeared to be blood upon or about her; that there was a wound upon her head from which brains appeared to be escaping; and that her hair appeared to be matted or dishevelled and a portion of it appeared to have turned gray. But the effect of such wounds in destroying life the question whether the blood was found by analysis to be human blood, or whether what appeared to be brains was not in *421fact some )ther matter, might require scientific examination, the results of which could only be stated by an expert. We think tho' the testimony as to the hairs was properly admitted.

The testimony offered in behalf of the prisoner, in respect to hairs seen on the wood-piles on the 9th of October, related to a period more than five months subsequent to the murder. This period is so remote as to make the evidence unreliable and immaterial ; and it was properly rejected.

Exceptions overruled.