State v. Bradford, 57 N.H. 188

State v. Bradford

57 N.H. 188 | N.H. | 1876

Lead Opinion

FROM STRAFFORD CIRCUIT COURT. *Page 189 By article 87 of the constitution, "all writs issuing out of the clerk's office in any of the courts of law shall be in the name of the state of New Hampshire, shall be under the seal of the court whence they issue, and bear teste of the chief, first, or senior justice of the court; but when such justice shall be interested? then the writ shall *Page 198 bear teste of some other justice of the court to which the same shall be returnable; and be signed by the clerk of such court." Similar provisions are contained in Gen. Stats., ch. 203, sec. 2.

If a venire is such a writ as is contemplated by the constitution, then the venires issued in these cases were fatally defective, the language of the constitution being explicit, that all writs issuing out of the clerk's office shall be under the seal of the court, and bear teste of the chief or senior justice.

An examination of the files in the clerk's office for Strafford county discloses that from 1775 to 1815 venires were under the seal of the court; and that from 1815 to the present time they have borne the seal of the court in the years 1846, 1855, 1856, and 1857 only.

In Hillsborough county, from 1771 to 1800, venires were under seal; from 1800 to 1840 they were generally, but not always, under seal; from 1840 to 1858 they were not under seal; since 1858 they have been under the seal of the court.

In Rockingham and Cheshire counties, for over one hundred years the venires have generally been under the seal of the court; but in none of the counties of the state, so far as an examination has been made, have the venires ever borne teste of the chief or any other justice of the court.

If the framers of the constitution, in 1792, intended to include writs of venire under the provisions of article 87, it is unaccountable how the practice for the twenty years immediately preceding, and for the eighty-four years subsequent to that time, has uniformly been opposed to those provisions. The fact that such writs have never borne teste of the chief or senior justice of the court, and for a large portion of the time have not been under seal, has the force of a practical contemporaneous exposition; and the construction thus given and acquiesced in affords very strong ground for holding that by the term writ, as used in the constitution, is meant that class of writs of mesne process by which civil actions are commenced, and writs of execution by which the judgments of the court are executed. The venire, although technically called a writ, is rather an order of the court issued to the several town-clerks, directing and empowering them to select the requisite number of persons to serve as jurors. So the precept issued by the governor for an election to fill a vacancy is sometimes called a writ. So, also, the warrant for a town or school district meeting, and a warrant for the collection of taxes, are sometimes spoken of as writs. But they have no resemblance to the precept usually called a writ, whereby an action is commenced or the judgment enforced.

No exception lies to the action of the court in excusing certain jurors. None were excused except such as the respondent claims were illegally drawn; and the court has so long exercised the power of excusing jurors for reasons that have been deemed satisfactory, without its power so to do being questioned, that it must be regarded as firmly settled that the court has such power, and that the exercise of it in the discretion of the court will not ordinarily be revised. *Page 199

LADD, J., concurred.

Dissenting Opinion

In Hawkins's Pleas of the Crown, B. 2, ch. 25, sec. 16, it is said, — "It seems that one who is under a prosecution for any crime whatsoever, may, by the common law, challenge any of the persons returned on the grand jury, — as, being outlawed for felony, c., or villeins, or returned at the instance of a prosecutor, or not returned by the proper officer, c."

In 1 Wharton's Criminal Law, sec. 468, it is said that "irregularities in selecting and empanelling the grand jury, which do not relate to the competency of individual jurors, can in general only be objected to by challenge to the array;" and in section 469, — "When a person who is disqualified is returned, it is a good cause of challenge, which may be made by any person who is concerned in the business to come before the grand jury. The same objection which may be made by challenge to a petit juror may be made to a grand juror. In New York, while it is said to be a good cause of exception to a grand juror that he has formed and expressed an opinion as to the guilt of a party whose case will probably be presented to the consideration of the grand inquest, it is added that such exceptions must be taken before the indictment is found, and will not afterwards be heard."

In State v. Haskell, 6 N.H. 352, an exception, that a juryman upon the panel that tried the case was drawn more than twenty days before the venire was returnable, was overruled as not seasonably taken. The court say, — "The venires are uniformly returned into court, and any party can have access to them and examine the return before his case comes on for trial. If he omits to do this, he must be considered as waiving an exception of this character."

In State v. Rand, 33 N.H. 216, the exception, that one of the grand jurors had, before the meeting of the grand jury by whom the indictment was found, formed and expressed the opinion that the informant was guilty, was overruled as not seasonably taken, it being made to appear that the respondent had knowledge of this before the trial. It hardly admits of a doubt in my mind that if this fact had been known to the respondent before the grand jury was empanelled, it would have been held to be waived if not taken then.

The objection to the venires seems to me to be in fact frivolous, as I cannot conceive of any way in which the respondent could suffer, or the course of justice be hindered, by the want of a seal. It has long been held that the teste is matter of form.

The venires are always returned into court before the empanelling of the jury, and are accessible to the parties and their counsel; and I can see no reason why, if such objections are intended to be taken by persons who are under prosecution, they should not be held to be waived if not taken before the empanelling of the jury, or at least before the finding of the indictment.

The other objection, that certain of the persons drawn as grand jurors were excused on motion of the prosecuting officer, may, I think, be disposed of in the same way. *Page 200

All that was done publicly might and ought to have been known to all parties who had any interest in the constitution of that grand jury, and ought, therefore, to be held to be waived if not taken at the time.

While parties who are under prosecution for crime ought to be allowed every reasonable opportunity to object to everything in the proceeding which can possibly be injurious to their rights, they ought to be held to the exercise of reasonable diligence, and they ought not to be permitted to lie by, keeping back matters of objection, which are or ought to be known to them, to be taken after a failure to make a meritorious defence.

While, therefore, I fully concur with my brother SMITH in regard to the objections, I prefer to put the decision on the ground that the objections were waived by not being seasonably taken, the cases expressly stating that the respondents were under prosecution.

Exceptions overruled.