1 Dakota 63 | Supreme Court Of The Territory Of Dakota | 1875
Lead Opinion
The above cause comes before this court from the county of Yankton upon writ of error. Several questions arising upon the motion for a new trial and arrest of judg
The Statute of 1862-3, Criminal Code, 107, § 13, provides that, “ a person held to answer a charge for a public offense, may challenge tbe panel of the grand jury, or any individual grand, juror, before they retire, after being drawn and charged by tbe court.”
Among the causes for individual challenge, the act embraces the following: Section 15, Sub. Div. 6, “That a state of mind . exists on his part in reference to the case, or to either party, which satisfies the court in the exercise of sound discretion, that he cannot act impartially and without prejudice to the substantive rights of the party challenging.”
After the grand jury in the present case had been impan-elled, charge and sworn, and before they retired, Peter P. Wintermute, this defendant, “ who was then held to answer a charge for a public offense ” before that body, challenged an individual member thereof in accordance with the permission and for the cause specified in sub-division six above quoted.
The court disallowed the challenge upon the ground that the Statute of 1862-3 had been repealed by subsequent territorial legislation, and was not in force. . That the presence of a disqualified grand juror vitiates the whole panel is well settled by numerous authorities, among which are the following: 1 Bish. Crim. Pro., § 884; Commonwealth v. Cheny, 2 Virg. Ca., 20; 1 Ch. C. L., 307-8-9; 2 Hawk. Cr. Ch., 25, § 16; Barney v. State, 2 S. & M., 68; Portis v. State, 23 Miss., 578; Stokes v. States, 24 Miss., 621; Miller v. State, 33 Miss., 356; State v. Symouds, 36 Me., 128; State v. Lightbody, 38 Me., 200.
The grand jury impanelled and the challenge thus denied, that body returned to consider whatever presentments might be made. Subsequently it indicted the defendant, thus held to answer, for murder ; and afterwards he was tried and convicted in the District Court in the county of Yankton for manslaughter.
If, therefore, the Statute of 1862-3 was not then in force, the court below, by its rulings, so far as the same are presented by the motion in arrest, gave to the defendant all the rights
The present legal status of the law of 1862-3, and the place it should hold in the jurisprudence of this Territory, are the only questions we need discuss. If the law was not in force the motion in arrest should be overruled. If it was in force the judgment must be arrested.
The history of the legislation in this Territory which relates to the questions we are discussing, is this: The Act of 1862-8 was repealed by the Act of 1868-9, page 165, Sec. 799. That of 1868-9 was repealed by the Act of 1872-3, page 23, chapter 5. Section 1, of the Act of 1872-3 provides, “ That chapter first of the laws of 1868-9, entitled ‘ An act to establish a Code of Criminal Procedure for Dakota Territory,’ approved January 12th, 1869, be and the same is hereby repealed.’ ”
Is then the Statute of 1862-3 revived by repealing that of 1868-9, which repealed the former?
The principle of law, that the repeal of the repealing act revives the statute originally repealed, has been too often adjudicated and the principle is too well established to require elaboration or a lengthy citation of authorities.
Blackstone, says: (Vol. 1, page 90) “If a statute that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose.” The same rule is laid down in Potter’s Dwarris on Statutes, 159; in Tattle v. Gimwood, 3 Bing., 493; in Commonwealth v. Churchill, 2 Met., 118. This general principle may be found almost anywhere where the subject is discussed, and was not denied, as we understand, by the counsel who represented the People in the argument of this case.
The denial of the legal force of the statute of 1862-3, was based upon other reasons which we will proceed to consider.
Section 2 of the Act of 1872-3 provides, “ That from and after the passage and approval of this act, the proceedings, practice and pleadings in the District Courts of this Territory, in criminal cases, shall be in accordance with the proceedings, practice and pleadings of the common law, except where the same is otherwise expressly regulated by law.”
It was contended on behalf of the People, that this section qualified the unlimited repeal of the Act of 1868-9, fixed by the first section, and introduced the common law as a rule of practice in lieu of all statute law. In other words, it is contended that these words manifest an intention in the legislature not to revive the Act of 1862-3, but to adopt the common law in lieu of it.
Such is not the meaning of this section. In construing a statute, all the elementary writers say, it must if possible be so construed as to give an intelligent meaning to all the words of such statute, and any construction which necessitates the rejection, or which renders meaningless some words, and especially words to which some obvious meaning was intended, is presumptively erroneous.
When the legislature adopted the common law as the rule of practice in this Territory, “ except where the same is otherwise expressly regulated by law” it obviously meant something by these words, and so to construe the act as to render such words meaningless is a violation of the plainest principles of legal construction, whether of statutes or any other documents.
An examination of the criminal statutes of the Territory show, that if these words — except where the same is otherwise expressly regulated by law — do not refer to the Act of 1862-3,
The first Act of Criminal Procedure passed in the Territory, was that of 1862-3. The second was that of 1868-9. Now the repeal of the Act of 1868-9 by that of 1872-3, left nothing but the Act of 1862-3, to which the expression quoted above could refer. Hence, we hold that these words are not meaningless, but do refer to the Act of 1862-3; and that the intention of the legislature was to incorporate the common law upon that act, and thus by the act and the common law to create a harmonious system in which the common law should constitute the ground work, and the statute specific directions in matters of criminal procedure. It is well understood by the profession in the Territory, that this statute (the one of 1862-3) was not full, i. e., its provisions did not meet every emergency; therefore, the legislature could see the necessity of commingling its provisions with the common law.
The theory that the common law alone should be a rule of procedure seems to us unreasonable. The Common Law of England was so modified by English statutes, that at this day, to sever it and bring it to a new country and apply it without more modern machinery, is practically an impossibility. On the contrary, to receive it in connection with special statutes, is in accordance with the principles of the American system, and the principles of our jurisprudence.
It is not the duty of the court, therefore, to strike out the common law and act alone upon the statutes of the Territory, and go back to the common law alone, but to weave our statutes and the common law into one uniform texture of jurisprudence, thus construing the statutes in harmony with our modern policy and with the common law, and not adopting either to the exclusion of the other.
The next point of objection to the legal authority of the Act of 1862-3, and the doctrine of a revival of a repealed statute by the repeal of the repealing act, arises from an Act of Congress which it is contended bears upon this question; vide 16 U. S. Statutes at Large, 431. The section of the act relied upon is as follows:
This section is from the Act of February 25th, 1871, and is claimed as a rule of legislation, or legislative construction within this Territory.
The power making this section operative within the Territory, is claimed to be found in the following provision of the Organic Act, section 16: “ That the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said Territory of Dakota as elsewhere within the United States.”
The question under these sections is: does the Act of Congress obtain force within the Territory so as to control legislative action? In deciding this question we must look to the title and body of the act to discover its scope and intention. Such examination shows conclusively that this act, not only has no binding force within the Territory, but was never intended to have.
The caption of the act is, “ An act prescribing the form of the enacting and resolving clauses of acts and resolutions of Congress, and rules for the construction thereof.”
The very purpose of the Act by Congress, as plainly expressed by the enacting power, is to furnish rules of construction for themselves, and the words of the clause fixes the definite limitation.
“ Though the title of an act,” says the author of the notes in Dwarris, 102, cannot control the plain words in the body of the statute, yet, taken with other parts, it may assist in removing ambiguities.- The intention of the law makers, it has always been held, is the best guide for the construction of statutes.
The body of the act is in harmony with the enacting clause. It gives the form of the enacting words of a Congressional law or resolution, and the definition of various words which may be used therein; and then comes the section cited above as to repealing acts, and the law of construction, which, by this section, Congress adopted for itself.
Congress has been enacting statutes now for nearly a century. It would, therefore, be impossible to retain in mind all the repealed acts which the repeal of the repealing acts might revive. It was, therefore, perhaps wise to establish the rule that no repealed act should be revived except by express words. However this might have been for Congress, the reason has no force within the Territory where the statutes are limited to a few years and could easily be called to ihind.
But the controlling reason upon this question lies in the fact, that by the Organic Act, section 6, it is provided:- That “the legislative power of this Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act.”
This act gives to the legislature complete control of the question of legislation subject to the limitation therein named. In reference to the manner in which'laws shall be enacted, or in which they shall be repealed, whether it shall be by direct words, or by implication, or repugnancy, no rule is laid down. And can it be contended, that some ten years after the Organic Act was passed, after the legislature had always acted without limit under it, that a rule expressly made for Congress itself, operates to modify or limit that Organic Act? and, therefore, laws must be passed and repealed, or revived in the Territory, just as they are passed, revived, or repealed by Congress?
Let us reverse this proposition: In the act referred to, Congress provides how it will enact laws, what captions, titles, etc., it will have, and how it will repeal them. Would it be contended for a moment, that if a Territorial law, duly passed, did not have the same form of heading or caption that a law of Congress has, it would be void? and, yet, this reasoning is as forcible as to the form of enacting clauses as it is to the form of repeal.
We are, therefore, of opinion, that this law of Congress does not, and never was intended to operate within the territories, and that it has no bearing upon the question at issue.
Prom the above reasoning and authorities, we hold that the Statute of 186*2-3, under which the said challenge was made, was then and there in force, that the refusal to grant the challenge asked for, took from the defendant one of the greatest safeguards guaranteed by law, and hence the judgment in this case must be arrested.
In this opinion the court expressly declines to decide, or give any intimation as to the effect of the past proceedings upon a future prosecution. It orders the defendant into custody to answer to any indictment which may be found, reserving all questions arising upon any new indictment for future adjudication.
Since this opinion was announced this rule has been abrogated by Section 2i32, Civil Code, which provides: “ Whenever any act of the Legislative Assembly is repealed, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided,
Dissenting Opinion
disseutiNg: I dissent from the opinion filed by Mr. Justice Kidder, and from the judgment which the majority of the court have thought it proper to render in this case.
They declare they have discovered one error, “ decisive in the case,” and for this alone they arrest the judgment, reverse the entire proceedings, and hold the accused to await a new indictment. And, it must be borne in mind, this solitary error has relation to nothing that occurred during the progress of the trial before the jury (a trial that lasted over twenty days) — to nothing in regard to the formation of the petit jury itself — to nothing in the admission or rejection of evidence — nor to anything in the body of the charge to the jury, or in the responses of the court to the fifteen complicated and voluminous requests, or propositions of law, offered by the counsel for the defense.
The pith of the alleged error, consists, it is said, in an irregularity in the formation of the grand jury, by which irregularity the presence on the panel of a “ disqualified grand juror ” was brought about.
Here at once arises the divergence of opinion; for I respectfully affirm that the grand jury was lawfully constituted, and that no “ disqualified” person was a member of it.
Indeed, I think I may venture to go still further, and to affirm that no accused party in any-known criminal action, ever had a fairer or fuller opportunity for asserting his legal rights upon the organization of a grand jury, than was accorded to this party. In fact, the majority of the court candidly admit that if the Statute of 1862-3 was not then in force, the court below, by its rulings, “gave the defendant all the rights to which he was entitled.” By which, of course, is meant that the court below, in the organization and in the challenging of the grand jury, accorded to the accused all the rights, and afforded to him all the opportunities, to which he was entitled Toy the' common law. In the interests of justice and the due administration of law, this broad concession is of the highest value and most significant importance. And whether that statute was, or was not, in force, it follows by the irresistible strength of logic and reason, that if those sections of that code which relate to the challenging of jurors, were merely declaratory of the common law, conferring no new right and entitling the defendant to no. privileges which he would not have enjoyed at common law, then there is an end to all doubt or question, and the court below did, there
The first question that naturally arises and that should be examined, is: had the defendant a fair opportunity allowed him, according to law, to exercise his right of challenging the individual grand juror, George W. Delamater? This is the precise ánd only point in the case. The defendant complained that he had not, and the majority of this court sustained his view of the matter. Without stopping here to inquire whether or not the objection was properly on the record, or at all a part of it, under well-known rules, and in order to a correct and thorough understanding of the subject, I consider it proper (even at the expense of being considered prolix) to adduce the record, so that it may answer. It discloses the following facts:
Peter P. Wintermute being under arrest, charged with the killing of Gen. McCook, was, on the 5th of March, 1874, set at liberty, by being admitted to bail to appear at the next April term, to answer to such indictment therefor as might be found against him. On the 4th of April, in pursuance of an order to that effect, the officers appointed by law duly drew .the names of the sixteen grand jurors; and the venire was, on the same day, placed in the hands of the sheriff. Among the names drawn and in the venire, was that of George W. Dela-mater, a well-known citizen of Yankton. The venire was returnable to the 16th of April, 1874. It thus appears that from the' 4th until the 16th of that month, the accused had knowledge, from the public records, of the names of all the grand jurors; and he consequently had abundant time and opportunity to make all requisite inquiries as to the character, competency, and impartiality of the citizens who were, to compose the grand inquest, and more especially with reference to Mr. Delamater, a resident of his own city. On the 16th day of April, the sheriff having made return of said vénire, the names of the grand jurors served (fifteen) were publicly called in open court, and they appeared and took’ seats. Among them, was George W. Delamater. The de
The record nekt shows that the said sixteen persons were then duly sworn to malee true answers touching their qualifications to sit as grand jurors.
Thereupon a controversy having arisen as to the competency of Matthias Bagstadt, the counsel for the defendant drew up and presented to the court, the following paper, which was duly filed:
“ Now at this time, sixteen persons having appeared and “ taken seats in the box as grand jurors of the county of “ Yankton, comes the defendant, P. P. Wintermute, a person “ held to answer to any indictment that may be found against “ him at this term of the court, in person and by his counsel, “ and also comes the District Attorney for said Yankton “ county, and one Matthias Bagstadt having been selected, “ drawn, and summoned upon the regular panel as a grand “juror, being sworn on his mir d,ire answers as to his quali- “ fixations, that,” etc. * * * “ Upon such answer the District Attorney asks that said Bagstadt be excluded from “ serving as such grand juror, alleging that he is not compe- “ tent to serve; to which said Wintermute objects, and insists “ said Bagstadt is a competent grand juror of this court.” The court excluded Mr. Bagstadt, to which ruling the defendant excepted, the District Attorney declaring, however, that no such exception would lie'.
The next step in the proceedings was an order to summon one good and lawful person as aforesaid, to supply the vacant
In view of these details extracted from the minutes, or journal, of the court below, and which were spread out at length on the record before this court, how can it, with any propriety, be asserted that this accused party was denied, or deprived of, any of his rights? On the contrary, it is manifest that very unusual precautions, joined with most scrupulous
We now approach the eventful point in the case. It appears that, on the next day, the 17th of April, counsel for the defendant proposed to challenge Mr. Delamater, upon a general statement and broad assumption of bias — namely, that the said juror “ cannot act impartially and without prejudice.” The offer was supported by no affidavit alleging surprise or mistake, or excusatory of delay, omission, or default. In courts of law when a party is in default, he must ordinarily .make some proof to open it, i.n order to be restored to the position he before occupied. But here there was not a scintilla of evidence of that or any other kind. It was not stated that a cause of challenge, unknown the day before, had been newly discovered. In fine, the offer was unaccompanied by any reason or excuse, or by the shadow of either, why the court should, at that day, and under' those circumstances, undertake, in the face of objection, to break up and disorganize the grand inquest.
Moreover, the offer, as presented to the consideration of the court below and of this court, had not even the support of an affidavit of the defendant that he believed, or had cause to believe, or had been informed, the juror was partial or prejudiced. And in no portion of the proceedings, at any stage afterward, does the oath of anybody appear averring partiality, prejudice, or other unfitness, of that juror. In the position then occupied by Mr. Delamater, and in view of the solemn oath he had taken the day before, this was a grave charge against his honor and reputation, and tending to his infamy; and consequently no court of justice, mindful of its duties and of the law, could, for an instant, think of tolera
Here it may be as well to observe that, in the opinion of the majority of this court, it is considered that Mr. Delamater was “a disqualified grand juror,” whose presence vitiated the whole panel. But how was he disqualified? Upon what part of the record does this appear, or how was it shown? Did the bald assertion of the defendant, on the 17th, make him so? Manifestly, it did not; and if not, how else was the alleged disqualification made to appear? It must not be forgotten that by all the presumptions of law he was qualified, and that no mere random declamation could render him otherwise.
But again: the offer was, at best, but a loose, vague generality. It contained no specification of the particular cause, or facts, from which the alleged impartiality, or prejudice, was to be inferred. It did not state that the juror had formed or expressed an opinion as to the guilt of the accused. It did not assert personal enmity or hostility, or that an action, implying malice or displeasure, was pending between the juror and the defendant, or that the cause had happened since he was sworn.
It is also observable that the court in overruling the offer in the shape in which it was presented, pointed out its prominent defects, and thereby plainly signified how a renewed offer might have been shaped. The court in overruling the offer, among other things, said: “ This offer to challenge is “ made the day after the impanelling, organizing, and swear- “ ing of the grand jury. No cause is assigned or shown for “ this delay. * * * Thé proper time to object to the com- •“ petency of this juror, would have been on yesterday, and u before he was sworn. Then there was abundant oppor- “ tunity for such purpose. * * * * This offer does not “ declare any newly discovered information as to this juror;
Here were at least two things about which the court desired to be satisfied; first, the reason for the delay and default; secondly, whether the alleged cause of challenge was, or was not, discovered after the swearing of the juror? Was-this unreasonable? Or rather was it not the duty of the court to inquire into them? But no response was made. The defendant and his counsel stood mute. After such notice as the above, that no renewed offer was made, affords strong presumption either of the incorrectness of the first allegation and its abandonment, or of an inability to comply with the requirements of law.
It is quite true the court at the same time remarked that it had “ heretofore decided that the Code of Criminal Procedure of 1862-3, is not in force,” etc. But it is a very grave misapprehension to assert that the court disallowed the challenge solely upon the ground of the repeal of that statute. The offer to challenge, in the shape, and under the circumstances, in which it was presented, was refused because the court, under objection made, considered it improper and unlawful to receive it. And this is the very question — no matter what remarks, whether correct or incorrect, the court may have made at the moment. The precise question was whether the immemorial and then existing law, as binding on the court itself as it was on parties, that after the jury is sworn it is too late to take or to allow a challenge, except for good cause shown, was to be treated as if it'had no place in our jurisprudence, or if so, whether it should be tossed aside at anybody’s whim or suggestion.
This was the point squarely brought before this court, and the majority concede (to again refer to their own language) that — “ if, therefore, the Statute of 1862-3 was not then in force, the court below, by its rulings, so far as the same are presented by the motion in arrest, gave the defendant all the rights to which he was entitled.” But contrary to their further views, I also affirm that if that statute was then in force,
In Bacon’s Ab., Vol. 5, page 365, is the following: “ It is laid down as a rule, that no juror can be challenged without consent after he hath been sworn, either in a criminal or civil case, * * * unless it be for some cause which happened since he was sworn.” “ The jurors must be challenged, if at all, before they are sworn, or the oath of affirmation tendered to them.” 2 Hawk., C. 43. § 1. In 1 Archbold, 554, in quoting Coke, Hawkins, and Chitty, it is said — “ this last author maintains that the proper time for challenging, is between the appearance and the swearing of the jurors. And this seems to be the true doctrine. The challenge of a juror must be before the oath is commenced.” Wharton states that after the grand jury is assembled, the first thing, if no challenges are made, or exceptions taken, is to select a foreman. In the case of Mima Queen, 7 Crauch, 297, C. J. Marshall (as to an objection to .the qualifications of one of the jurors, made after the juror was sworn) said — “ whatever might have been the weight of this exception if taken in time, the court cannot sustain it now. The exception ought to have been made before the juror was sworn.” “ The grand jury as sworn is always presumed to be competent, unless the contrary appear.” 2 Hale’s P. C., 162. Bishop on Criminal Procedure says — “ if parties choose to have their cause tried by prejudiced or otherwise incompetent jurors, who are tendered to them according to the forms of law, they can do so; and if they know of the cause of challenge, and do not take it at the proper time while the jury is being impanelled, they cannot avail themselves of the defect afterward. If a party declines to take an objection while the jury is being impanelled and sworn for the cause, he cannot ordinarily take it afterward.” In Reg. v. Frost, 9
Rut it is useless further to multiply authorities. The almost universal rule at common law is, as stated in 40 Ills., to-wit: that the objection should be taken, as in the case of a petit juror, before the grand juror has taken the oath. If in the case of a petit juror who is to sit on “ the jury of life and death,” it is essential that a challenge, peremptory or for cause, must be taken before he is sworn, a fortiori must a challenge to a grand juror for cause, be made before he is sworn. For the grand juror does not try offenses, but only inquires into and presents them to the court by indictment. Hence the remark of Marcy, J., in the case in 3 Wend., quoted above. If such strictness is to be observed with regard to trial jurors, should not even greater exactness be required as to grand jurors? In fact, the actual existence of a cause of challenge to the latter, is generally considered of so little importance that in most cases it is not exercised.
Whilst it thus appears that the nearly universal rule is that it is too late after the jury is impanelled and sworn, to inquire into the impartiality or incompetency of a juror, yet if it be discovered subsequent to oath, that he is prejudiced or otherwise incompetent to serve, he may, for good cause shown, and in the exercise of a sound discretion, be set aside by the court. As to this permissive or discretionary power, Mr. Bishop says this — “ but where the defect was unknown at the time, the courts will permit the party injured by it, to take advantage of it afterward, in some circumstances, and to an extent which no general statement can define. In U. S. v. Morris, 1 Curtis C. C., 23, it was held that although neither party has a right to challenge after a juror is sworn, yet that it is a motion within the discretion of the court. In Yirginia it has been held
But enough has been quoted to show the tenor and force of the common law on the subject. It remains now to be seen in what essential particular the Statute of 1862-3 (assuming that it was and is in force) differs from the common law. What statute, as to the challenging of petit jurors declares that a challenge to the panel must be taken before a jury is sworn; that a challenge to an individual juror must be taken when the juror appears, and before he is sworn; but the court may, for good cause, permit it to be taken after the juror is sworn, and before the jury is completed. In relation to grand jurors, it gives a challenge to the panel for three specified causes, and a challenge to any individual grand juror for six enumerated causes, most of which may be taken by either party — that is to say, by either the prosecution or by the defendant. But it has also the following section: “ A person held to answer a charge for a public offense, may challenge the panel of the grand jury, or any individual grand juror, before théy retire, after being sworn and charged by the court.” Now although this section seems to be a stumbling-block to the mental vision of the majority of this court, yet to my mind it is perfectly clear it is nothing but a substantial repetition of the permissive or discretionary power of the common law in the premises, as the same is accurately set forth in the other section relative to the proper time for challenging individual petit jurors. It is but a paraphrase of the other one, which itself embodies the common law exception. Both sections, with all the others relating to challenging, must be construed
Any other construction than the one I have given — which is the natural and obvious one — would involve the monstrous absurdity and the solemn farce of forming, swearing, and charging the grand jury, before challenges to the panel and to its members would commence. The ancient, regular organization of the body of the inquest, with the charge of the Judge superadded, would be but the idle prelude to the testing of the competency of the individuals. The mir dise, losing its appropriate place, would be postponed to the oath in chief, a,nd the whole meaningless process would be like to the building of an edifice only to tear it down. If some of the members should be set aside, and their places filled, the party might again wait until after a fresh swearing in chief, and another charge from the Judge, and then once more demand this so-called right. Or, in this manner, all might disappear, and a new body would have to be brought in, with the prospect of an infinite continuance of the same irrational, if not nonsensical, procedure. And the above, it is to be regretted, is not a fanciful, overdrawn picture of the absurdities to which the law as now laid down might lead; for it is of judicial cognizance that we have actually had in this Territory, such practical exemplification of the necessary outgrowth of this lame construction.
The reason of tlie law is the life of the law; and, without
I dissent from the decision of the majority of this court for another reason, and shall proceed to state it. Going upon the assumption-that the said statute was and is in force, I hold that the defendant by voluntarily pleading “ not guilty ” to the indictment, and by demanding to be tried “ by the country ” on the merits, became precluded from afterward taking this objection. It seems to have been forgotten by the majority of the court that this statute appoints and fixes a precise order and rule of pleading. It prescribes that when a defendant is arraigned, “he may in answer to the arraign- “ ment either (1) move the court to set aside the indictment, “ or (2) may demur, or (3) plead thereto.” And first as to the
1. When it is not found, indorsed, and presented as prescribed in the chapter relating to that subject. That chapter treats of the number, qualifications, drawing, summoning, challenging, and oaths, of grand jurors — of their powers and duties, of the number requisite to concur in the finding of an indictment, and generally of all matters appertaining to the finding of the bill. So that when a true bill is found, and presented to the court, and filed as a public record, if the accused party thinks it was not found in all particulars as set forth in that chapter, it becomes his duty, in order to avail himself of any alleged defect, to move the court, on or before his arraignment, to set aside the indictment. The statute directs that, on his motion, for any of the reasons therein stated, the court must set it aside. The above is, then, the order of pleading established by this statute, giving notice to all parties of the course to pursue, and of the proper time to intervene. And in this order alone may the defendant successively plead all these kinds of pleas and denials. He cannot, at common law, vary the settled order, for by a plea of any of these kinds, he is taken to waive or renounce all pleas or objections of a kind prior in the series. This short and simple form of a motion to set aside the indictment, embraces, as grounds for the motion, any matters of fact tending to impeach the correctness or regularity of the finding. In the case now before us, the defendant had the fullest opportunity, after the filing of the indictment, to present or to renew objections, so as to place them properly and adequately upon the record. If he felt that any of his rights had been prejudiced because the indictment was found by a grand, jury not properly constituted or not having the proper authority, he ought to have gone into court, before pleading to the merits, with affidavits or other proof, and made the requisite motion. By this reasonable course he would have placed the whole matter upon the record, and would have also given the court a full oppor
The majority of this court knew, or were bound to know, that this defendant was thus precluded; and that, therefore, they had no authority to hear, and no right to pronounce upon this objection. The legitimate and inevitable consequence of all which, is just this: that their own favored and approved statute being the only standard and criterion, the matter alleged as error was coram non judice, and they had no jurisdiction. .
And as tending to show that I am not alone in thus construing that statute, I shall quote at some length from the opinion of Lewis, C. J., in 7 Nevada R., 333, State v. Roderigas: “It is argued that the indictment is defective, in that it does not show that it was found by a grand jury having the proper authority.” To this point it is sufficient to answer that it was not taken by demurrer or by motion at the proper time, and, therefore, under our statute cannot afterwards be raised. Section 275 of the Criminal Code of Procedure, among other things, declares that, “ The indictment shall be set aside by the court in which the defendant is arraigned and upon his motion, in either of the following cases:. First, where it is not found, indorsed, and presented as prescribed by this act;” and section 277 provides, that “If the motion to
There is likewise another portion of the Statute .of 1862-3, to which, it would appear, due attention was not given. It is as follows: “ No indictment is insufficient, nor can the trial, judgment, or other proceedings thereon, be affected by reason of a defect or imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.”
Although this Statute of 1862-3 has been already made to perform a very conspicuous part in this case, yet it cannot be dropped without viewing it in the new and strange light reflected upon it by the decision of this court. As to the point now involved, it has been seen it is of no consequence whether that statute was then in force, or was not in force. I am of the opinion, however, that it was not. To comprehend this subject fully, it is important to review the history of the legislation bearing upon it. The first act of the Legislative Assembly relating to criminal procedure was that of April 28, 1862. The second was that of the session of 1862-3, approved January 9, 1863, which repealed all acts or parts of acts inconsistent with it. The third was chapter eighteen of the laws of 1867-8, entitled “ An act relating to the challenging of jurors in civil and criminal cases,” which repealed all acts and parts of acts in conflict with it. The fourth was chapter nineteen of the laws of 1867-8, entitled “ An act respecting grand and petit jurors of the district courts,” which repealed chapter fifty-two of the session laws of 1862, and chapter twenty-six of the session laws of 1862-3, and all other acts and parts of acts in conflict with it. The fourth was that of the session of 1868-9, approved January 12, 1869, which
This was the condition of the legislation on the subject from the last named date until January, 1878. Within a period of about ten years, the people of the Territory had witnessed the existence of all these laws, and then the repeals as above specified. Their Legislative Assembly had deliberately discarded the Code of 1862-3, after six years’ trial of it. The Code of 1868-9 had been undergoing a probation of about four years. It is evident there was dissatisfaction. None of these codes, it seems, answered the wants and interests of the public. The people had been learning in the school of experience. From the first organization of the Territory, they had seen that, in criminal cases on the Federal side of their courts, the proceedings, practice and pleadings were in accordance with the common law, as regulated and modified by Acts of Congress and decisions of the Federal courts. This mode of procedure was-working smoothly and effectively; and was, it is likely, affording a higher degree of satisfaction, than was to be derived from the operations of crude, perplexing, and awkwardly jumbled codes, borrowed from the statutes of various States. Instead of two differing systems in the same court — one for Federal cases, and the other for Territorial cases — it was, no doubt, deemed expedient to have but one. That this was the feeling and desire of the people, is deducible from the fact that, on the 8th of January, 1873, their representatives in the Legislative Assembly enacted the following law:
An act to repeal chapter first of the laws of 1868-9, entitled “ An act to establish a Code of Criminal Procedure for Dakota Territory.” Approved January 12th, 1869, and for other purposes.
Be it enacted by the Legislative Assembly of the Territory of Dakota:
SeotioN 1. That chapter first of the laws of 1868-9, entitled “ An act to establish a code of criminal procedure for Dakota Territory,” approved January 12th, 1869, be, and the same is, hereby repealed.
Seo. 8. Writs of error, bills of exceptions and appeals, shall be allowed to the defendant in all criminal cases, when required by him, under such rules and regulations as the supreme court of the Territory may prescribe; and the said supreme court shall, at its first annual session, make all necessary rules and regulations to carry this section into effect.
Sec. 4. This act shall take effect and be in force from and after its passage and approval.
Approved, January 8th, 1873.
Here is a statute that has nothing obscure, ambiguous, or doubtful about it. The words embody a definite meaning, involving no incongruity or absurdity. There is no contradiction between its different parts. The thought which it expresses is lucid and manifest. The meaning is apparent on its face, and that meaning is the only one which we are at liberty to say was intended to be conveyed. In this case there is no room for construction. The meaning which the words declare, is the meaning of this statute; and neither the courts nor the legislature have a right to add to, or take from that meaning. (7 N. Y., 99; 11 N. Y., 593.) It is not permitted to interpret what has no need of interpretation. When an act is expressed in clear and precise terms; when the same is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally presents. To go
The legislature, moreover, looking back over the vista of the entire life of the Territory, and over all the prostrate and defunct codes, deliberately selected, from the ruins and the rubbish, only two enactments of them all, naming them, to-wit: chapters eighteen and nineteen of the laws of 1867-8, and expressly declaring that these two portions of the entire debris should be revivified, and remain in full force and effect; and thereby, by an established rule, excluding and repro-bating all others not named. And in the third section, in lieu of the abrogated provisions as to writs of error and appeals, they substituted such rules and regulations as the Supreme'- Court might prescribe. The legislature had sense enough to perceive that after all that could be said in their favor, these codes were but attempts to enunciate and to arrange the rules and maxims of the common law, with which every lawyer and judge was supposed to be acquainted. They preferred to leave the whole matter to the courts, rather than any more to trust in the efforts of codifiers who had given them, instead of what was applicable to their territorial condition, ill-digested and incongruous laws, hastily patched up from the statutes of different States.
They will, furthermore, perceive that an Act of Congress which declares that, “Whenever an act shall be repealed which “ repealed a former act, such former act shall not thereby be “ revived, unless it shall be expressly so provided,” is not, in a Territorial court, entitled to receive even as much consideration as a mere opinion of some State court.
They will see, finally, that in violation of a mandate which declares that the common law shall be the rule, except where the common law is otherwise expressly regulated by law, a dead statute is resurrected by the sheer force of implication.
But to conclude: Other arguments and authorities bearing upon the case, might bé given. I have, however, neither time nor inclination to pursue the subject-any further. .1 have expressed my opinion and the reasons therefor at far greater
In my opinion the judgment should be affirmed.
I did not intend to, and probably should not have felt called upon to file a separate opinion in this case, were it not for the fact, that in the dissenting opinion filed, the Chief Justice seemed to assume, or at least to convey the idea, that the majority of the court, by their decision, affirmed and approved all the rulings of the court below, as well as the instructions to the jury, and the refusal to give other instructions asked for. Such, however, is not the case. The Supreme Court pursued the usual course, viz.: Where the appellate court determine that there is error in the proceedings of the court below, anterior to the trial of the case, and which sends the case back to be again acted upon by a grand jury, the appellate court seldom allude to alleged errors upon the trial, or to instructions to the petit jury. I think the Chief Justice well understood that his associates did not, and could not indorse or approve his argument or instructions to the jury, or his manner of disposing of a number of the instructions asked for, by the defendant’s counsel. The majority of the court purposely left the charge of the court below, and the manner of giving and refusing instructions, judicially untouched. The discussion of those matters in the dissenting opinion was unnecessary for the disposal of the case. ‘This case was brought into this court for review; the counsel for the prosecution and defense submitted their points, briefs and arguments, and by agreement made in open court, read such portions of the record of the trial and proceedings in the court below, as the counsel agreed was necessary to a full understanding of the case under review in the Supreme Court.
The court sanctioned this usual and reasonable practice, and acted upon the records, points, briefs, and arguments then submitted. After this case has been decided, and upon the case thus presented in the Supreme Court, the Chief Justice, from a different standpoint, presents an argument more
Let us state this more clearly and strongly. Assuming that this Statute of 1862-3 means what it says, viz.: that after
While the Chief Justice affirms with so much earnestness, that no accused party ever had a fuller or fairer opportunity for asserting his legal rights, upon the organization of a grand jury, than was accorded the defendant, I assert that it plainly and palpably appears from the record of the court below, that the defendant was denied a plain, substantial legal right.
This court will not stop to^inquire to what extent this error may have prejudiced the defendant, but will only inquire, could it have prejudiced the defendant? For this court at this present time, in the case of Yankton County v. Rossteuscher, has declared the rule to be this — that where improper evidence was received under objection, the appellate court will not stop to ascertain whether the improper evidence was in fact, prejudicial to the party objecting, but will only examine sufficiently to ascertain whether it could have injured the objecting party; and this rule was most strenuously insisted upon by the Chief Justice, I think this rule is binding upon this court, and is properly applicable to the question now under consideration.
But again: The Chief Justice argues at great length and cites innumerable authorities to establish another conceded proposition — namely, that at common law it is too late to
He says that when the court delivered his charge to the grand jury, it was a public judicial recognition of its official existence as an appendage of. the court — when once created a
The Chief Justice in his argument urges as another reason why the challenge should not be allowed as claimed by the defendant, that its effect would be to disintegrate the grand jury, and yet he asserts that the court below in the .exercise of its discretionary power, could allow the challenge after the grand jury were sworn and charged. This naturally suggests the inquiry — would not the disintegration of the grand jury have been the same had the challenge been allowed under the discretionary power vested in the court below, that it would have been if allowed under the provisions of the Statute of 1862-3? But the Chief Justice has still another reason. He says: In view of the solemn oath the juror Delamater had taken, this was a grave charge against his honor and reputation and tending to his infamy. Truly this is a most remarkable statement. If under such circumstances the challenge allowed by law, is a reflection upon a juror, would it be any the less so were it addressed to the court, and the challenge urged as a matter of favor excusing the default in not haying made it sooner? But it is no reflection; it might as well be asserted, should a defendanffavail himself of the provision of
I fail to discover that the Chief Juctice has given one good reason for asserting that this statute of 1862-3 is only declaratory of the common law. Surely he will not claim that inasmuch as the courts in their discretionary power at common law could exercise this authority, that, therefore, the legislature did not intend to declare as a matter of absolute right, that a defendant under certain circumstances might challenge a jury or a juror, and without permission of the court. I think I am safe in saying that the history of all legislation in this country, as well as in England, for a long period of time, has tended strongly in the direction of securing to parties charged with crime, such rights as they were entitled to, and divesting courts of discretionary power in all cases where it is safe and prudent to do so. Why should the right to challenge a juror be in abeyance, subject to the will or caprice of court or judge? The time was in England and of comparative recent date, when the allowance or refusal of a writ of error was a discretionary power. So in the matter of bail, courts and officers had almost unlimited power to grant or refuse bail. Now in most cases it is secured to the accused by legislative enactment as a legal right, and I might cite innumerable instances of it were it necessary.
Again the Chief Justice says: “ I dissent from the decision of the majority of this court for another reason, and shall proceed to state it. Going upon the assumption that the said statute was and is in force,. I hold that the defendant by voluntarily pleading not guilty to the indictment, and by de-
Now, first, I assert that the statute referred to by the Chief Justice, is not correctly given by him. The provisions of the statute on that subject: Section 1, chap. 21, Criminal Code of 1862-3, contains this provision — “ the indictment must be set asidé by the court in which the defendant is arraigned, and upon his motion in either of the following cases: First, when it is not found, indorsed, and presented as prescribed in chapter 32.” Now the Chief Justice has depleted this statute by leaving out the words “in chapter 32,” and adding the words “ in the chapter relating to that subject.” This perversion of the statute is significant and important, in the investigation of this matter, as chapter 32 referred to, contains no provisions upon the subject, and the Chief Justice has no warrant or authority for mutilating this statute, or for claiming that when the legislature referred to chapter 32, they mean or intend to refer to some other statute. But yielding this point for a moment and assuming that they intended to refer to chapter 18, laws of 1862-3, as this is the chapter relating to grand juries; — now while I do not concede that in a criminal case the court has the right or authority to say, that when the legislature refer to chapter 32 that they mean some othey chapter; yet, as chapter 32 does not refer to grand juries and chapter 18 does, I shall assume that chapter 18 was intended by the legislature when they say “ 32.” And how does this question then stand? Now § 1, cháp. 21, Criminal Code of
Now, first, let us see how the Chief Justice has depleted this section, for it is the only section in which the language quoted by him is to be found. He has despoiled this section 2 by leaving out the qualifying words, viz.: “ mentioned in the last section.” With that section thus depleted, and then by omitting to refer to the five specific objections, which are considered waived unless taken by motion, the inference would seem tobe irresistible from the arguments of the Chief Justice, that all objections to the indictment, or to the drawing, impanelling, swearing and challenging of the grand jury, were waived unless the objection was taken by motion. Such, however, is not the case. There are five objections that must be taken by motion, if taken at all. Now § 60, chap. 18, Criminal Code of 1862-3, provides that an indictment cannot be found without the concurrence of at least twelve grand jurors. * Same section provides, the indictment must be indorsed a true bill. Section 64 provides, that it must be presented by the foreman of the grand jury to the court, in the presence of the grand jury; and section 63 provides, that the names of witnesses must be indorsed on the indictment. Section 42 provides, that at certain times the District Attorney, and no other person, may be present with the grand jury. Therefore, when the law is fairly stated, the five enumerated objections, all formal and none effecting the question involved in this case, are the only objections that must be taken by motion. But such warping and depleting the
Now for a moment let us look at the main reason assigned by the Chief Justice for this rule or its enforcement. It is this: that by this motion this matter would be placed on the record. Let us consider that objection. On the’17th of April, 1874, the defendant’s counsel challenged the juror Delamater, claiming the right to that challenge under the law of 1862-3. This is no less than a motion to set aside the juror for cause. The court overruled that application, challenge or motion, and declared that the law under which they claimed that right was repealed. To that ruling the defendant’s counsel excepted. That exception was signed by the Chief Justice— sealed with the great seal of the court, and marked “ Exception No. 4.” If by this operation it was not made, and did not become a matter of record, by what process could it be made so? If it was not the view of the court at that time, that this motion and exception, thus became a matter of record, then all this ceremony was a meaningless farce. The reason urged, then, by the Chief Justice, why this motion to set aside the indictment should have been made, is answered.
I have, thus far and at some length, pointed out the errors and inconsistencies of the dissenting opinion in this case, and
Still I find another question is suggested by the argument of the Chief Justice. He says: “ Here it may be well to observe, that in the opinion of the majority of this court it is considered that Mr. Delamater, was a disqualified grand juror, whose presence vitiated the whole panel. But how was he disqualified? Upon what part of the record does this appear?” It is very apparent that the learned Chief Justice
This brings us to the consideration of the last and only point necessary to be considered, which is the only real and important question in the case, viz.: Was the Criminal Code
Having referred to some of the principal points made by the Chief Justice, I have neither time nor the inclination to followthe discussion into the realms of imagination. Whether the defendant is guilty or not guilty of a high crime, is not involved in the question determined by this court — namely, that the defendant was not put upon his trial on an indictment found, indorsed, and presented by a properly constituted and legally organized grand jury. Every man charged with crime is guaranteed a fair and impartial trial according to law. And it is of the utmost importance that the law be determined correctly, administered fairly and impartially, without fear or favor. Whether the opinion of the court of dernier resort in this young Territory, meets with the present approval or condemnation of the popular voice, is of infinitely less importance than the calm assurance that all questions submitted to this court will be determined according to law. The organization of the Supreme Court in a territory is liable to some criticism, from the fact that the Judge who sat in the court below and whose decisions are being reviewed, has an equal voice in the final determination of the question in the