McCarty v. StateMcCarty v. State
The errors assigned in this canse are as follows :
1. That an improper oath was administered to the jury.
2. Thаt the record does not show what judge presided when the prisoner was indicted.
3. That the record shows that the jury, on their retirement, were undеr the charge of an officer who was merely “ sworn to take charge of them.”
4. That the trial should have been suspended on prisoner’s motion, because one of the jurors on the special venire was twice named therein.
5. It was error to require the juror Lum to be tendered to the prisoner, after he had been challenged for cause by the state, the prisoner not objecting.
6. That prisoner was entitled to regular service of a list of the panel of regular petit jurors, after the special venire was exhausted.
7. It does not appear by the record that the grand jurors who fоund the indictment were competent jurors.
8. That the first instruction asked by the state is erroneous.
The first and third grounds of error have been disposеd of, and held to be untenable, in the case of Dyson v. State,
The second ground of error wc do not think well taken. The circuit court for eaсh county of.the state is a tribunal established by law, and can be held only by the judge properly assigned to the circuit to which the county belongs, unless under special circumstances which constitute an exception, and which, if they exist, must appear on record. If the record states that a circuit court was held at the time and place appointed by law, in and for the particular county, it could оnly be held by the appropriate judge, and this must be judicially known and considered by this court, unless something varying the. regular course of that cоurt is shown. ' A different rule may be possibly applicable to courts of special and limited jurisdiction. We think it therefore í questionable whethеr the organization of the court, even as it appears in the caption of the indictment, is not Buffi-
As to the venire facias containing the name of the same juror twice, it does not appear that any prejudice was occasioned to the prisoner by it, or but that it was the mere mistake and inadvertence of the sheriff, without ally cоllusion or improper design, and without any real injury shown to the prisoner. Under such circumstances, a mere informality of such a charaсter is not ground of error. 12 East R., 230;
Nor do we think that the prisoner was entitled to a copy of the names of the regular venire, after the exhaustion of the special venire. The regular venire was a matter of record, and entirely accessible to any one interested in the proceеdings of the court, and therefore bound to be taken notice of for all legal purposes. The statute goes no further than to give thе accused the right to a copy of the special venire, doubtless upon the supposition that a sufficient number of jurors would be ordered to enable the parties to select the jury. To extend the right of special notice further would be to give a right which the statute had not given, and which, by its silence, cannot be presumed to have intended to be given. It would be without the sanction of law, and lead to the greаtest delays in trials, as the same right might, with equal reason, be claimed as to all talesmen, and thus all law and justice be defeated.
The objection to the juror Lum is equally untenable. When a juror is objected to for cause, it is the duty of the court, under
As to the objection to the sufficiency of the grand jury, we do not think it valid. But even if it would be when properly taken, this court will give no countenance to such objection, when no complaint was made of it in the court below, and the accused' submitted himself to trial, and was fairly tried and convicted. Such is the settled rule established by this court. Brantley’s case, 13 S. & M.;
The last objection is to the first instruction granted at the instance of the state, as follows: “ That if the defendant was prеsent at the time of the killing of deceased, with the intention to aid and abet in the murder of deceased, they must fin'd him guilty as charged in the indictment.”
This instruction is clearly sound law, as a general rule, and it is not pretended that the evidence did not justify it in this case. It is said, that the presence оf the accused at the killing of the deceased with the intention to aid and abet in murdering him, and he was murdered, would not make the accusеd a principal in the second degree; that it requires participation to constitute such character. If by this it is meant that there must be an actual part taken by the accused in the fact of killing, it is not supported by reason or authority. If a party be present, with
We are of opinion, that there is no error in the record, and that the judgment should be affirmed.
A petition for re-argument was filed by the plaintiff in error in this case, but the court refused to grant it.
Notes
Wharton Am. Cr. Law, 3218; Mix v. Woodward,
Archbold Cr. Pr. & Pl., 62, 63; State v. Hardin, 2 Dev. & Batt., 407; State v. Town, Wright (Ohio) R., 75; State v. Coleman,