134 Mo. 607 | Mo. | 1896
This is an original proceeding in this court to obtain a writ of prohibition against Judge Slover of the circuit court of Jackson county to prevent the drawing and impaneling of a petit jury to try the case of Milton Tootle and others against relator, now pending in his court. In a word, it is a direct attack upon the constitutionality of an act of the general assembly of date April 1, 1891 (Laws of Missouri, 1891, p. 172), providing for the manner of selecting petit jurors and prescribing their qualifications in
Relator charges that said act is a denial of the right to a special jury as guaranteed to relator by the constitution and laws of this state. By article 2, section 28, of the constitution of Missouri, “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.” By the act of 1891, which relator assumes is in contravention of the constitutional guaranty just quoted, the county court is required to cause the county clerk to make, under its supervision, a complete list of all qualified jurors of the county. After the list is pre-parecTpThe county court shall cause each name to be written by the county clerk on a stiff card, all of the same size. These cards are then placed in a box or wheel provided under the direction of the court, which shall be kept securely locked and retained constantly under the control of the clerk. Whenever any circuit court or court having jurisdiction of felonies, desires a panel of jurors or any part of a panel the said court or judge in ¡vacation shall so order and designate the number of jurors so desired, thereupon the clerk so situated as to be unable to see the names on such card, in the presence of the judge, shall draw that number of cards from the wheel or box, and thereupon the county clerk shall make a list of said jurors so drawn and preserve the same in his office and deliver a certified copy thereof to the clerk of the court for which said jury was drawn, who shall issue a venire therefor to the sheriff or other proper officer of said court. By section 7 it is provided that the name of every juror drawn for a special venire shall be returned to the box or wheel unless the judge shall order to the contrary; and any name returned to the box or wheel is erased from the list of those who have served as jurors.
The learned counsel for relator relies largely upon the recent decision of this court in State ex rel. v. Withrow, promulgated March 17, 1896 (133 Mo. 500), but that case does not apply for two reasons. First, section 2802, Revised Statutes, 1879, and section 6089, Revised Statutes, 1889, amendatory thereof, simply conferred upon all parties the right to a special jury upon certain conditions, without defining what constituted a special jury or the manner of selecting it, while the act of April 11, 1879, did provide specifically for selecting a common jury and did not so provide for a special jury, and it was held that as the legislature had adopted the common law term, “special jury” without defining it, resort must be had to the common law to. ascertain its significance, and the difference in the mode of selecting it and the qualifications of special jurors, whereas by the act of April 1, 1891, under consideration, the legislature has designated exactly how a special venire is to- be obtained in counties having more- than fifty thousand and less than three hundred thousand inhabitants.' Second. In State ex rel. v. Withrow, supra, the effect of a rule of court was before us for construction, whereas in this case a statute, enacted by the legislature itself, is the matter for consideration.
As already said, inasmuch as the learned judge of the circuit court conformed his practice to the statute, the only point for serious consideration is the constitutionality of the act itself. Has the legislature the power and right to define the qualifications of jurors whether on the regular panels or summoned for a special case? Has it the right to prescribe and regulate the mode of selecting and summoning jurors! By “the right of
In Vaughn v. Scade, 30 Mo. 600, Judge Scott says: “The term ‘trial by jury’ was well known and understood at the common law, and in that sense it was adopted in our bill of rights. Of course the nonessen-tials of that institution, such as concern the qualification of jurors, the mode'of summoning them, and many other such matters, were left to the regulation of law. The constitution is preserved in retaining the substance of that form of trial as it was known and practiced among those from whom we have derived it.”
Unquestionably under the guise of regulation, legislation which in effect would destroy the great feature of the common law jury would not be tolerated, but no reason can be given why the people in their sovereign capacity may not improve the method of selecting a jury by excluding from the list those unfit.by crime or immorality, or by repealing the freehold qualification of the common law, or any property qualification. Nor can we perceive how the impartiality of the jury can be lessened by the fact that the duty of selection is no longer confided to one man, the sheriff or coroner, but a list of all qualified citizens is placed in a box or wheel, well mixed and the panel drawn therefrom by the clerk in the presence of the court or judge.
In Hayes v. Missouri, 120 U. S. 68, Mr. Justice Field in discussing sections 1900 and 1902, Revised Statutes, Missouri, 1879, allowing the state in a murder case fifteen peremptory challenges in St. Louis and only eight in the counties of the state, said: “The constitution of Missouri, and, indeed, every state of the Union, guarantees to all persons accused of a capital offense, or of a felony of lower grade, the right to a trial by an impartial jury, selected from the county or city where the offense is alleged to have been committed; and this implies that the jurors sha.ll.be free from all bias for or against the accused. * * * To secure such a body numerous legislative directions are necessary, prescribing the class from which the jurors are to be taken, whether from voters, taxpayers, and freeholders, or from the mass of the population indiscriminately; the number to be summoned from whom the trial jurors are to be selected; the manner in which their selection is to be made; the objections that may
Now, it is the historical jury of twelve that is guaranteed by the constitution and bill of rights, and we have seen that when the essentials are preserved, all other matters looking to their selection are confided to the legislature.
The special jury was not a matter of right at common law but was within the discretion of the court, nor has it been in this state an absolute right save when prescribed by statute. If it is competent for the legislature to change the qualifications and prescribe new methods for selecting the constitutional jury, how can it be maintained it may not also determine in what cases a special venire may be had, and how it should be selected, and what obstacle is there to the abolition of the special jury system absolutely?
The historical twelve was an absolute legal right. It was this “right,” which our constitution secures, but a special venire was not a legal right but rested in the discretion of the court and hence has not passed into a constitutional right,' and in the absence of a limitation upon the people in their legislative capacity, they can abolish the right to a special jury altogether.
Whether we construe this act of April 1, 1891, as abolishing all distinction between common and special
We discover nothing in the act that is calculated to abridge or deny any essential of a jury trial as understood at common law, .and hold that its various provisions were clearly within the province and discretion of the legislature.
The writ of prohibition is denied.