9 Ala. 137 | Ala. | 1846
The 55th section of the 10th chapter of the penal code, among other things provides, that “ on a trial for any penitentiary offence, the accused shall be allowed'fifteen peremptory challenges.” [Clay’s Dig. 459.] This enactment, it is insisted, makes it imperative upon the court, where several are charged in the same indictment, with a crime of the grade of that designated, to allow to each of the defendants a separate trial.
At the common law, it must be conceded, that it was discretionary with the court, in such cases, to direct or refuse a severance.
The precise ground upon which the right tp a separate trial is rested, in the case before us, was most elaborately considered in the United States v. Marchant, et al. 4 Mason’s Rep. 158. There, a joint indictment was found against several for murder, who severally pleaded not guilty. A motion was made in behalf of one of the prisoners to be tried separately ; and this he claimed as a matter of right. Mr. Justice Story was of opinion, that upon a joint indictment for a captal offence, it would be competent to try the prisoners, either jointly or severally; that where the trial is joint, the right of peremptory challenges is. in no degree narrowed or affected. Each prisoner, in such case, has a right to challenge the full number, and, in this respect, is unaffected by what the other prisoners do. “ If, therefore, says the learned Judge, “in a capital offence, where twenty peremptory challenges are allowable by law, there is a joint indictment, and joint trial of several persons, each may challenge the whole number to which he is entitled; and if there be two on trial, the challenges may extend to forty; if three, to sixty,” &c.
As for the question, whether a juror challenged by one prisoner, and not by another, was to be withdrawn as to all, it was.considered settled upon just and reasonable principles,
In the case cited, it was argued for the prisoners, that the right of separate trial, when claimed, results necessarily from the several fight of challenge. The prisoner, in favor of life, it was said, had a limited right to elect his jury. If he is tried alone, it is always in his power to say.who that jury shall be. But if he is tried jointly with another person, then the jurors he may wish to serve on his trial, may be challenged by the other prisoner, and so his right of election and selection may be materially impaired. The court thought that the argument took for granted, the very point in controversy ; and while it conceded that the right to challenge for cause is unlimited, it affirmed that the right of peremptory challenge was restricted.
It is asked, “-what,is the right of peremptory challenge, but a right to exclude from the trial any persons who are disagreeable to the party on trial ? Suppose the panel to consist of 72 persons, and the challenges to be limited to 20, all that the prisoner can do is to exclude 20 from this list; ánd it depends altogether on the order in which the jurors are called, who may be excluded or not. If the prisoner challenge the first 20 who are called, the next 12 called from the remaining 52 constitute, the jury. It is true, that if he chooses to suffer any juror to be sworn, before he has exhausted his challenges, to that extent he selects his jury; but this is a mere incident to his right to exclude jurors, to a limited extent; and not the principal object contemplated by the law.” The reason upon which the right of peremptory challenge was placed in the argument at the bar, is not referred to by the text writers, but it is placed on the ground of the tenderness which the law extends in favorem vitce, to those who are charged with capital offences, and is regarded for the most part as a concession to the caprice and prejudice of the accused.
The power of one person, when tried alone, to say who shall compose his jury, even if those whose names aré on the panel furnished, cannot be admitted, not only for the reason stated, but for the additional reason, that in a case like
The view taken, is very fully sustained by the argument of the court, and the numerous citations made in the case referred to. That case was removed to the Supreme Court of the United States’upon a certificate of division of opinion of the Judges of the Circuit Court, and was again considered upon a reference to the early English decisions, as well as the elementary writers upon criminal law. The court said, that the right of challenge is not in itself the right to select, but to reject jurors. It enables the prisoner'to say who shall not try him, but not to say who shall be the particular jurors to try him. “ The law presumes that every juror sworn in the case is indifferent, and above legal exception; for otherwise he may be challenged. What jurors in particular shall try the cause, depends upon the order in which they are called ; and the result is a mere incident following the challenges, and not the absolute selection of the prisoner, resulting from his power of challenge.” The English authorities cited by the counsel, for the plaintiff in error, are commented on, and it is very satisfactorily shown, that they do not sustain the conclusion which it was insisted at the bar they establish. None of tire earlier adjudications, it was said, maintain that there could not be a joint trial, where the prisoners challenged. What fell from Lord Holt in Charnock’s case, in respect to a several trial, referred solely to the public inconvenience, on account of a probable defect of jurors, and not to airy matter of right in the prisoners. [See Rex v. Noble, 19 Harg. St. Tr. 1, 15; Howell’s St. Tr. 731.]
In Bixbe v. Ohio, 6 Ohio Rep. 86, it was determined, that two indicted of a joint offence, may be tried jointly, though .a separate trial is demanded by one of them; and where several are thus indicted, and put upon their trial, each must be .allowed his separate peremptory challenge of jurors. To the same effect is the case of the United States v. Wilson, 1 Bald. Rep. 78.
In the United States v. Shop, et al. 1 Peters' C. C. Rep. 118, the court permitted three of seven prisoners indicted
The verdict of the jury affirms the guilt of Hawkins as charged in the indictment, viz : that he committed the assault and battery, with the intent to kill and murder. This is confessedly a finding co-extensive with the charge ; but it is supposed that the consideratwm est, consequent upon the verdict, is defective, and that it does not show the plaintiff in error is subject to imprisonment in the'penitentiary, although he is directed to be thus punished. That portion of the entry is as follows: “It is therefore considered by the court,that the prisoner, C. Spencer Hawkins, is guilty of an assault with intent to kill, and that he be, and is hereby, sentenced-
The judgment of the Circuit , Court is affirmed.