3 Wend. 314 | N.Y. Sup. Ct. | 1829
Lead Opinion
The following opinions were delivered by the court:
It is proper, in the first place, to dispose of the motion to quash the certiorari. This was urged on the ground of its being directed to the oyer and terminer instead of the general sessions of Monroe. When the certiorari was allowed, the indictment was in the sessions ; when it was served, it was in the oyer and terminer, in pursuance of an order previously made by the sessions. Being there, the certiorari operated upon it, and produced the result intended by it, to wit, the removal of the indictment into this court. There is therefore no reason for quashing the writ.
Whilst the indictment remained in the court of sessions, a caption to it was not necessary. Where a certiorari is sued out to remove an indictment into another court, a caption must be affixed to shew the regularity of the finding of the bill. It is the duty of the clerk to affix it, and he is warranted in so doing, whether an entry is or is not made in the minutes of the court of the finding of the bill. If, in truth, a bill was found by a grand jury, brought into court, filed and made a record of the court, it is enough to justify him. An entry was in fact made in this case, and approved by the
By the act directing the mode of selecting grand jurors, passed in 1827, (Statutes, vol. 8, p. 312 a,) the duty of making the selection is conferred upon the supervisors of the several counties of the state. They are required to select such men only as they shall know, or have good reason to believe, to be possessed of the necessary property qualification to sit as petit jurors; to be men of approved integrity, of fair character, of sound judgment, and well informed. Thus, the qualifications of the grand jurors are defined by statute, and if those selected possess the required qualifications, there can be no objection to the array. I do not approve of the exclusion by the supervisors of any set of men, on the ground of their belonging to any particular- association or fraternity. A grand jury should be selected with a single eye to the qualifications pointed out by the statute, without enquiry whether the individuals selected do or do not belong to any particular society, sect or denomination, social, benevolent, political or religious. It is represented to us that one of the supervisors of Monroe had stated that the anti-masonic supervisors of that country, or a part of them, in preparing the lists of the grand jurors, had, on the one hand, intentionally and purposely left off the names of individuals for no other reason than that they were members of the masonic fraternity ; and on the other, that they had selected those who were most zealous anti-masons. If a part of the supervisors erred in the discharge of their duty, it is not to be presumed that a majority of them, upon whom the task devolves finally to determine the persons to be selected, fell into the same error. But if they did thus err, the array cannot for that cause be
As to the right of challenge to the polls. The objection urged against Lacey, the foreman of the jury, is that he, with others, published a pamphlet, in which it is stated that the defendant, when called upon as a witness in reference to the abduction of Morgan, had refused to testify, alleging that he could not do so truly without criminating himself; and concludes with strictures on the conduct of the defendant, shewing the estimation in which t,he juror held the defendant on the subject of the charge against him. It is not perceived how this could disqualify the juror from serving on the inquest, or finding a bill against the defendant. The fact stated by the juror is not denied by the defendant, nor is it intimated that the charge was made from prejudice or hostility. As to Wood, the other juror, good cause of challenge existed. There are causes of challenge to grand jurors, and these may be urged by those accused, whether in prison or out on recognizance; and it is even said that a person wholly disinterested may, as amicus curia, suggest that a grand juror is disqualified. But such objection, to be availing, must be made previous to the juror being empannelled and sworn. It has been urged upon us that the defendant not having been apprised of any intended proceeding against him, not having been arrested on a criminal charge, or required to enter into recognizance to appear at the court where the bill of indictment was found, had not an opportunity to make his challenge ; that now is his earliest day in court, and that he ought therefore to be permitted to avail himself of this defence. Although the force of this appeal is felt, I cannot yield to it, and consent that after an indictment found the party charged may urge an objection of this kind in avoidance of the indictment. The books are silent on the subject of such exception after indictment found, and in the absence of authority, I am inclined to say, in consideration of the inconvenience and delay which would unavoidably ensue in the
Concurrence Opinion
I fully concur in the views taken by the chief justice in this case, and it is useless perhaps for me to enlarge upon them. In relation, however, to one or two points embraced in this motion, I will add a few remarks.
The caption is no part of an indictment. It is said to be only the style of the court in which the indictment is found. While the indictment remains in that court, it is not necessary, and I believe not usual, to add the caption; but when it is removed by a writ of certiorari or otherwise, the caption is added by the clerk. It is a mere ministerial act of that officer. I do not discover that it was not properly done in this case.
The alleged misconduct of the supervisors of Monroe county, in selecting the grand jurors, if shewn in a more satisfactory manner than it is in this case, would not authorize us to sustain the motion on that ground. One of that body avowed, that in executing the duties of the act of 1827, he excluded from his choice all free masons and that some others did the same. I am free to say, that the setting up a rule of exclusion, not warranted by the statute, was improper and reprehensible, and if corruptly done, constituted an offence; and even if done under a mistaken notion of duty, it can receive no countenance from us.
After diligent search, I do not find that an objection to an indictment has been sustained where the jurors were probi et legales homines. Although some of the supervisors acted upon a rule that excluded individuals who had all the qualifications required by statute, this did not operate to bring in any person who had not those qualifications. The law does not require all the qualified persons in the county to be selected. The supervisors selected the full number, and those they selected were competent. Notwithstanding all the members of a particular association were excluded, it does not appear that the supervisors returned one man whohad not the requi-.
I have had more difficulty in disposing of the objection made to Lacey and Wood. What is urged against Wood particularly, would have been sufficient to exclude him on a challenge upon the ground of favor; though on the argument, it was said to be otherwise by the counsel for the people. The opinion of Ch. J. Marshall on the trial of Col. Burr,, and of Woodworth J. in the case of The People v. Burlier, are decisive of this question. If the objection to these jurors could have been presented when they were empannelled, and the facts on which it rests properly authenticated, I think it would have been sufficient to exclude them.
As the defendant was not recognized to appear at the sessions when the indictment was found, he did not know that any charge would be laid before the grand jury against him, and consequently he had no opportunity to object to these jurors before they were sworn and had presented their indictment. He had not done or omitted to do any act whereby his rights are compromited; but it does not thence follow that he can have this indictment quashed, because, at a previous stage of the prosecution, he would have had a right to remove one of the .jurors from the panel. Though I feel the force of the argument, that the defendant should be allowed the benefit of an exception to a partial grand juror, 1 cannot turn my view from the consideration of the great delays and embarrassments which would attend the administration of criminal justice, if it was to be obtained in the way now proposed. No authority for adopting this course was shewn on the argument, and I have not since' been able to find any-.. It would be a novel proceeding, and there is reason to fear it might be followed with more serious difficulties than are now foreseen.
Motion denied.
Since the determination of this question, Mr. Justice Marcy has called the attention of the reporter to a case which .arose in the supreme judicial court of Mussachusetts, in 1811, respecting the challenge to a grand juror. On a grand juror being called to be sworn, Story, (probably now Mr. Justice Story of the United States’ bench,) as amicus curia, suggested that one-------— had been accused of the crime of murder, and that his case would probably come under the consideration of the grand jury; that the juror called was a neighbor of the accused^ had originated the complaint against him, and had most probably formed a strong opinion of his guilt. The court, alluding to the challenges to the grand jurors on Burr’s trial in yirginia, and pronouncing that a solitary instance, observed, that if objections of this nature were to be received, the course of justice would be greatly impeded; that the knowledge of the general character of parties and witness es by those who reside in the vicinity of persons accused, rendered them more fit to serve on grand juries. If, however, any individual juror should be sensible of s uch a bias upon his mind that he could not give an impartial opinion in any particular case under the discussion of the jury, such juror would feel it his duty, as it would be his right, to forbear giving an opinion, or perhaps to withdraw, while the subject was under discussion. The juror was sworn. (8 Mass. R. 286.)