State v. Cardoza

11 S.C. 195 | S.C. | 1878

Lead Opinion

The opinion of the court was delivered by

Willard, C. J.

It has been so often held that this court cannot set aside the verdict of a jury in a case in the nature of an action at law or in a criminal case, on the ground that the verdict was against the evidence, or unsupported by it, that it is-not necessary to consider that portion of the appeal that makes such a demand, farther than to say that it is not competent for this court to say, on appeal in such a case, that a discrepancy between the evidence and the verdict based upon it, is so great as to warrant the inference that the jury were influenced by improper consideration. The proper place to examine questions of that nature is at the Circuit, and the decision of the Circuit Court,, so long as no error of law is committed by it, is final and con'clusive.

The first point to be considered relates to the regularity of the drawing and impaneling of the petit jury. Section two of the-act of June 8th, 1877, (16 Stat. 259), provides that “when, by reason of challenge or 'otherwise, there is a deficiency in the number of grand or petit jurors duly drawn and summoned at any term of the court in any county of the state, the judge of the Circuit Court shall order the board of jury commissioners, or a-majority thereof, forthwith to attend in court and to draw, in the presence and under the direction of the court, such number of jurors as the court shall deem necessary to fill such deficiency ;• the jurors so drawn to reside within five miles of the court-house.” It is conceded that such a case of deficiency arose in the present case, and that a majority of the jury commissioners, under the-direction and in the presence of, the court, drew from among the-names of such persons as the law contemplated for that purpose, the number required to supply such deficiency. It is not alleged that the names from which such drawing was made included any that did not properly belong there, or excluded any that should have been subjected to such drawing.

The objection is that the names drawn were contained in a compartment of the box separate from that which contained the names of the jurors from the county at large, and that such names were not selected and placed in such compartment by the authority of law. It must be assumed, though not distinctly stated, that the selection of the names from those of the jurors at large was made by the jury commissioners, and such names placed by them in the compartment of the box from which the drawing was made, inasmuch as to allow that selection and interference with the jury box by an unauthorized person, would be a breach of official duty on the part of the jury commissioners that cannot be presumed. It is not stated when the names of such jurors-were placed in the partition from which the drawing was made, the only statement of irregularity being that it was done “ long after a proper and legal list of jurors had been prepared for this county for the year 1877.” We are at liberty to assume that such selection and transfer to the separate compartment was made by the jury commissioners in the presence of the court for the purposes of such drawing. The proposition on which the appel-" lant relies is, that there was no authority of law for the selection and removal of the names of the jurors residing within five miles of the court-house from the other names of jurors into a separate compartment of the box and making the drawing therefrom. It is contended that the only authority for such an act is that contained in the fourth section of the act of June 8th, 1877, which contains as follows: “When the jury lists are prepared by the jury commissioners for each year, they shall place in a separate apartment in the jury box the names of fifty persons, qualified by law to serve as jurors, who reside within five miles of the court-house, from which shall be drawn the jurors to supply the deficiencies provided for in the second section of this act.” By this section the number to be so placed for the county of Rich-land is fixed at one hundred. It is also contended that as the jury lists in question were prepared prior to the passage of the act of June 8th, 1877, no opportunity ever existed for the exercise of the power conferred by section four. No question is made here as it regards the number of names placed in the separate compartment. It is not stated that such number was in excess of one hundred, the number provided for in section four, nor that it was less than that number. Had the whole number of names of persons liable to jury duty residing within five miles of the court-house exceeded one hundred, and had the jury commissioners, at the time of drawing, confined the drawing to a less number than that of the whole number of persons having the qualifications indicated by the statute, a question might have been presented here, whether such a rejection from the drawing of the names in excess of one hundred could be made at any other time or in any other manner than that pointed out by the law. Blit as it neither appears that names of jurors residing within five miles of the court-house were excluded, nor the number of one hundred exceeded, no such question arises for consideration.

We cannot assent to the proposition that the action of the jury commissioners had no other sanction than that of section four of the act mentioned. Assuming that the jury commissioners, when called upon to draw from the persons residing within five miles of the court-house the names of a certain number to supply deficiencies, found that no such discrimination among the names in the box had been made, as it was essential to the discharge of the duty imperatively imposed upon them by section two of the act, that such a discrimination should be made, they had clear implied authority to make it. Whether they selected in the first instance from the whole number of the names in the box those subject to the drawing to supply deficiencies, and from among such made the drawing, or drew from the box at large, rejecting such as were not subject to such drawing as their names were drawn, is entirely immaterial. The difference between the two modes of procedure is formal and not substantial, and, as in ease of a drawing at such time and place, form is not made material by the statute, we can only look to the substance of the act. State v. Jennings, 15 Jtich. 42, for this reason, does not apply to the case in hand. It is matter of indifference whether a previous opportunity for making such selection had been afforded by the law and neglected, or had not been afforded, the duty of selection was equally inoperative. The jury commissioners were not performing an act for their own benefit, permitted to them on conditions, but an act essential to the administration of justice, and every intendment must be made in favor of the sufficiency of their authority.

There was not, in any legal sense, an irregularity, as affecting the legal results of the drawing, and therefore it is not necessary to examine the authorities cited by the appellant bearing on the question of what irregularities in the drawing and impaneling of juries are fatal. The exception to the drawing and impaneling of the jury was not well taken.

The next exception to be considered affirms that, upon the trial, the court denied the accused the right of peremptory challenge as allowed bylaw. The defendant was entitled to'five peremptory challenges. Gen. Stat. 747, § 3. He claimed the right to challenge four of the persons drawn and returned as petit jurors. His challenge was allowed as to two of the jurors and disallowed as to the other two. The consequence was that the jury by whom he was tried included two to whom he had peremptorily objected, notwithstanding the whole number of challenges allowed by law had not been exhausted at the time of the attempted challenge.

The ground on which such exclusion is defended is that the two persons who were permitted to sit as jurors, notwithstanding such peremptory challenge, had been drawn from the supernumerary list to supply the places of two others who belonged to jury No. 1 who had been excluded by challenges. This virtually confines the right of challenge in criminal cases so as to affect only the persons placed in one of the juries organized for the trial of civil causes. It assumes that other persons drawn and impaneled are not to be excluded, whatever objection may exist in the mind of the accused, to their occupying that relation , to him.

It is too clear to admit of doubt that the right of the accused to challenge any five of the persons drawn and returned as jurors could not be affected by the peculiar constitution of the regular juries and the supernumerary list for the trial of civil causes. In the first place, there must be a new jury impaneled in each criminal case. Gen. Stat. 747, § 8. The direct and intended effect of this' section is to make the selection of jurors in criminal cases depend wholly on the results of a drawing in open court, in the presence of the accused, from the whole number of persons serving as jurors. The occasions of its adoption were that a different rule prevailed in civil causes. In the last-named case parties were required to take a standing panel, deficiencies arising to be supplied from the list of supernumeraries.

Accordingly in presenting to the accused in the present case jury No. 1, only competent for the trial of civil causes, for his peremptory challenges, it was assumed that the jury thus constituted was competent to try the case. S.uch was not the fact independently of the assent thereto of the accused. It is true that the appeal does not present to us any objection to the mode in which the jury was impaneled other than that of the dis-allowance of the challenges, and therefore we are not called upon to say that there was error in constituting the jury otherwise than by a new drawing; but upon the question of the right of peremptory challenge, this consideration cannot be decisive. It may well be that the accused was content to waive, a new drawing, but he has evinced no intention to waive the right of peremptory challenge and its proper incidents. The right of peremptory challenge is not a formal right merely, but substantial and vital to the proper administration of criminal justice. The fact that the accused was willing tp waive any advantages that might arise from an impartial drawing in his presence is no ground to assume that he intended to waive objection to the sitting of persons whom he considered unfit, for reasons satisfactory to himself, to sit as jurors in a matter affecting him. The state could not well insist that one concession should embrace the other, because they were not necessarily connected or dependent on each other.

If the state and the accused should agree together that the jury should be impaneled in alphabetical order, or in any other way that might mutually suit them, while it is not for the court to deny them that right, still we cannot travel beyond the terms of their concession and make out a new law for the case, composed in part of rules governing civil procedure and in part of the rules applicable to criminal proceedings.

On the contrary, the right of challenge being a distinct and substantive one, must be deemed unaffected by such concession, and must be administered in the mode prescribed by the law applicable to the case. Charleston v. Kleinbach, 2 Spears 418. The method of drawing jurors in civil cases is stated and distinguished from the mode of drawing in criminal cases in this case. It was material that such distinction should be pointed out, as it was a qui tam action and had to be referred to either the one class or the other. It was held to appertain to the class of civil causes.

The principal question in the case appears to have been whether the plaintiff could challenge peremptorily unless that right was fully exercised before the defendant was called upon to make his peremptory challenges. It was held that where in civil causes it was necessary to have recourse to supernumeraries they were considered as talesmen, and that if either party desired to exercise the right of challenge there should be a new drawing among such persons. This undoubtedly implies that the right of peremptory challenge might be exercised against persons on the supernumerary list. The object of redrawing was to prevent the party intending to challenge peremptorily from virtually selecting a jury by means of his challenges, as he might to some extent do if the supernumeraries were called in their order on the list, that order being known to the party intending to challenge. Whatever may be considered the ruling of this case, it is in terms confined in its application to civil causes.

Durant v. Ashmore, 2 Rich. 184. In this case O’Neall, J., says : “ After jurors have been challenged and others have been drawn in their places, neither party can, under the act of the legislature, challenge the jurors so drawn.” State v. Kleinback, 2 Spears 418. It is to be presumed from the error in this citation that it was made from general recollection.

The report of the case of Charleston v. Kleinbaeh, which it is presumed is the case to which reference was here intended, does not appear to go to the extent or even in the direction claimed for it. However this may be, both were civil causes, and the rule laid down must be confined to such causes. Although the distinction is not clearly drawn in Durant v. Ashmore, independently of the nature of the case itself, yet what is there said is so said on the authority of Charleston v. Kleinbaeh, and the latter case pointedly enforces such distinction. It is not necessary to consider the rule stated in Durant v. Ashmore in its application to civil causes, but clearly it has no application to criminal causes. Whatever may have been the proper construction of the act of 1841, (11 Stat. 154,) that act is inapplicable to criminal cases at the present time, the right of peremptory challenge being governed at the present time by the General Statutes, § 3, p. 747. By the terms of the present law no limitation, except as to number, is imposed upon challenges in criminal cases.

As it regards the crimes of murder, manslaughter, burglary, arson, rape and gránd larceny, reference is made to pre-existing laws in the following words': “In the manner prescribed by law;” but these words are not used in the subsequent part of the section that relates to the right of peremptory challenge in all other criminal cases.

It must be concluded, therefore, that the right as conferred by the General Statutes in cases other than those specifically enumerated above, was intended tó be complete as thus quoted without dependence on any preceding statute of' limitation, and to be interpreted only in the light of the rules of law applicable to the subject. It must be concluded that the challenges were improperly refused.

The appellant alleges that the indictment is defective, “in that the statement of the offence charged does not contain an averment of a conspiracy to cheat by means of false tokens or a counterfeit letter in another man’s name.”

This is connected with the next objection, to the effect “ that ■the averment of the purpose and object of the conspiracy charged does not import a crime under the laws of this state.” If the latter proposition is unfounded, the first stated is immaterial. The precise question, then, is whether a charge of conspiracy against a public officer and others conspiring with him, with intent to cheat and defraud the state, as it regards matters appertaining to the duties of such public officer, imports a crime by the laws of this state independent of an averment of the employment for that purpose of a “ false token or a counterfeit letter in another man’s name.” This is a much narrower question than -that discussed at bar, but includes all that need be considered in •the present connection. In considering what may or may not be regarded as an indictable conspiracy, the question must be asked whether the object of the conspiracy was to injure the public or private individual. If it was to injure the public, then the public has a direct interest, either residing in the community at large or in the state as a corporate body; if to injure an individual, then the public has an indirect interest only, as concerned in the maintenance of order, the administration of justice, and the like. As an indictment is, in its nature, one of the modes •of redressing public wrongs, it is material to inquire whether the wrong alleged in its direct and primary intent tended to the public injury, .or became such only through the intervention of statutes and rules of law, defining what private injuries should be regarded as detrimental to the public.

A conspiracy to injure or defraud the public is indictable as •such, independent of the special character of the means employed for that purpose.

This will be found abundantly supported by the authorities. The authorities are uniform that a conspiracy to injure or defraud the public is indictable at common law. Johnston, J., in State v. De Witt, 2 Hill 282, correctly says: “ All agree that 'a combination to do a public mischief is indictable.” He instances the cases of injuries to health, vending unwholesome food, manufacturing base articles for public sale, imitating good ones, and to defraud the revenue.

All the counts of the indictment charge a conspiracy of the defendant, as state treasurer, with divers persons, to cheat and defraud the state out of a large sum of money. If, therefore, the charge is sufficiently full and clear, there can be no doubt but that it sets forth an indictable offence. It is contended, however, that, independently of a statement that such conspiracy to defraud was intended to be carried out by the use of a “ false token or counterfeit letter in another man’s name,” the facts charged do not constitute a crime. This argument ignores the important distinction between acts tending directly to the public injury and acts primarily affecting individuals, made criminal only as they affect the administration of justice, or as they are to be accomplished by means of false tokens and pretences. The causes illustrating this distinction are numerous. State v. De Witt, 2 Hill 282, and State v. Shooter, S Rich. 72, are cases of this class. In the first-named case the act in question was the destruction of a deed, while the latter case was one of the attempt to fabricate evidence by procuring a deed through false pretences. In both the inquiry intended primarily affected individuals alone, but became indictable through the fact that the creature of false testimony and the destruction of true testimony, tended to injure and impair the administration of justice.

In Lambert v. People, 9 Cow. 578, Senator Spencer, who delivered the leading opinion, holds that an indictment will not lie for a conspiracy to produce a private injury, “ which is not a crime in itself, and does not affect the public or obstruct further justice.” If the question is as to the character of the conspiracy, as judged by the nature of its object, this statement is free from objection. The mere fact of intending to cheat or defraud an individual is not, in itself, criminal, whether on the part of one- or many. When it becomes criminal it is through the means intended to produce such effect. A false token and counterfeit letter are means of that character. A false token and counterfeit letter are things that may affect others than the immediate object of the cheat; they may be capable, to some extent, of maintaining a credit with the public. A forged note or bill, receipt or letter, attired so that it may become detrimental to the community at large, is a clearly recognized injury to the public. It is not distinguishable from the case of spurious goods offered for public sale, in principle. State v. Rickey, 9 N. J. 293. This subject is fully discussed and the authorities reviewed at large in this case. It is conceded that when the injury is against the public the conspiracy is indictable; but that when the injury is intended to an individual only, it is not indictable,, unless the means employed are criminal.

The objection of appellant, that the certificate referred to in the indictment is not in law “ a false token or a counterfeit letter in another man’s name,” is disposed of by what has already been said.

It is alleged that the indictment is defective, for the reason that the acts charged against the defendant are repugnant and contradictory. This is connected with the further statement that the defendant is charged with having conspired to cheat the state by means which were not calculated to deceive, and not such- as could deceive the defendant, as the officer of the state charged with the performance of the act necessary to the consummation-of the offence.

The first, second and third counts of the indictment allege the means by which it was intended that the state should be defrauded, namely, by a forged pay-certificate, representing-that a fictitious person was entitled to payment on account of an appropriation to pay legislative expenses, attested by the officers of the legislative bodies authorized by law to attest demands of that nature. If there had been such person as C. L. Frankfort, and the state had been indebted in the manner,stated in that certificate, then it would have been the duty of the defendant, as state treasurer, to have paid such certificate in such manner as might be provided by law. On such payment being made, in the due course of his duty at that time, such certificate would have been retained in the treasury as a voucher for such payment, and on its production it would have appeared that such payment had been properly made.

The substance of the appellant’s objection is, that a false voucher by a disbursing officer, in order to cover the unlawful abstraction of funds in his hands, is not so to be regarded as a means of deception. Possibly it may be that it does not come up to the conception of a false token as essential for the foundation of a criminal charge in the case of an attempt to cheat a private person, when it was not intended, or of a nature to be so placed that the community at large might be affected by it as a means of obtaining credit; but as to this we are not called upon to decide. That such a means of covering a delinquency is not repugnant or contradictory to the idea of deception, is too clear to admit of argument. To manufacture a false voucher for the payment of money is of the very essence of deception.

The next objection to be considered is, “that the indictment is fatally defective in that the offence charged is not set forth and stated with sufficient clearness and certainty; that the means by which it is alleged therein the offence was intended to be and was consummated, are not set out either in substance or according to the tenor thereof; that the warrant or pay-certificate described as the said means, is not set out with sufficient precision and certainty, and by such special and specific description as to numbers, date and other peculiar and distinguishing marks, as to identify the charge, and fully, fairly, substantially and formally to describe to the defendant the crime for which he is held to answer.” It will be considered with reference to the fourth count whether a specification of the means intended for the consummation of the fraud alleged is essential to an indictment of this character. As it regards the first, second and third counts, the state has assumed to set out such means, and assuming such a statement to be necessary, it is clear that even the stringent rule claimed for the appellant has been complied with. The character of “ the pay-certificate ” is described as a warrant on the state treasurer for a sum certain on account of legislative expenses; the name of the fictitious person to be employed is stated; the persons to sign and attest the certificate are stated. The crime was consummated when the parties to the transaction agreed together as to the purpose of defrauding the state, although the intended injury remained to be consummated. If the conspiracy had related to an instrument existing prior to the time of such conspiracy, there might be a propriety in pointing out the instrument intended by indubitable marks. Had this been the case, the identification afforded by the description in the indictment would still have to be regarded as complete. There would be no reason to assume that more than one such certificate as that described in the indictment existed rendering further specification necessary to identification. But as the conspiracy had for its object the production of such a certificate, all that could be averred with propriety was-what the conspirators may have agreed concerning it. If numbers, names and marks subsequently put on the paper were not then in contemplation of the parties as material features of the .certificate, they could not properly bo alleged as comprehended in the direct objects and intents of the conspiracy. Looking at these three counts in the light of the charges in the indictment alone, this court cannot say that more nor less than is stated was comprehended in the terms and intention of the agreement of conspiracy.

The objection here is to the indictment and not to the character and sufficiency of the proof under it, and, looking at the indictment alone, we cannot affirm that anything is wanting that we have a right to assume as existing and forming part of the scheme of conspiracy. The crime charged is fairly, substantially and formally described, so that no possible doubt could exist in the mind of the defendant as to the nature of that for which he was held to answer. As it regards the fourth count, the objection assumes a different character.

This count charges that the persons indicted, on a certain day unlawfully, falsely, fraudulently and corruptly did conspire, combine, confederate and agree together, by divers false pretences and indirect means, to cheat and defraud the State of South Carolina of a large sum of money, to wit, “ the sum of four thousand • dollars, to the great damage,” &c.

This count affirms two things. First. An unlawful conspiracy to defraud the state out of a certain sum of money. Second. That the means of accomplishing it was to be by false pretences and indirect means.

Now, assuming that this was all that was agreed upon among the conspirators, an assumption that we are bound to make for the purpose of considering this count, did such act amount to an indictable offence?

That such an act of conspiracy is indictable, the authorities afford abundant means of establishing; but there are not wanting sufficient reasons why the common law, that seeks to afford a public remedy for every public wrong, should furnish the means of punishing such a conspiracy. To illustrate the princi- • ple involved, suppose that a conspiracy had been formed to rob on. the highways, but no person had been designated as the special subject of such robbery, and no definite place or means of overpowering the victims of the plot formed part of the agreement of conspiracy. Money and arms are collected to carry out the conspiracy, the band is divided, distributed and posted, some for purposes of direct attack, others to watch against surprise, and others to reinforce a weak party. No action has yet appeared to put in exercise the formidable combination of force and skill. At this stage of the operation the parties are arrested and charged with a conspiracy to rob. Must the charge fail because the terms of the conspiracy did not embrace circumstances of time, place and person, as it regarded the accomplishment of its purpose ? If so, then it would not be possible, even after the plan had been carried out, to punish the conspiracy, for, in the first place, the crime was consummated, if at all, at the moment the agreement was made, and if conviction in any such case could not take place prior to the actual commission of the intended crime, it was because no crime had been committed, nor could the character of the conspiracy in that.respect undergo any change after it was consummated by an unlawful agreement.. In the second place, the moment the right to punish the conspiracy arose it would be destroyed by merger in the offence of higher grade flowing from it. It would be a just reproach to the common law if it afforded no means of dissipating combinations threatening the destruction of legal security,- however formidable they might be, because the objects were general and threatened the community indefinitely, and were not aimed at some particular member of the community, or to some other limited and defined sphere. On the contrary, as we have seen, one of the great objects of this jurisdiction is to protect the community at large; and the protection of the individual is subordinate to that end.

■ The principle just illustrated applies with equal force but under altered circumstances in the case under consideration. Here the protection demanded is for the public property of the state, and those who eonfessedly violate the law by conspiracy to’ obtain unlawful possession of such property ought not to be permitted to shield themselves by saying that the object of their conspiracy was to lay hold of any property of the state they could reach by any means, and not to appropriate any designated piece of property by predetermined means. Yet this is the position the defendant must assume in order to ask that the fourth count may be adjudged bad. The question must be brought to the test of the authorities which will now be considered.

King v. Ecles, 3 Doug. 336. This was an indictment for a conspiracy to impoverish “ H. B.” and to deprive and hinder him from following and exercising his aforesaid business of a tailor. It was moved in arrest that the charge was general. It was held that it was not necessary to state the means, as the end was well stated. It is clear that the court regarded the conspiracy as indictable in respect of its object alone, and therefore a statement of the means was not essential to the description of the offence. It is not necessary to examine the assumption on which the conclusion rested, as the conclusion itself is clear that it is not essential in order that a conspiracy should be indictable that the means should be predetermined. Rex v. Gill, 2 B. & Ald. 204. This case is to the same effect, and the remarks made in regard to King v. Ecles are applicable to it. King v. Turner, 13 East 123. Lord Ellenborough, in this ease, says of King v. Ecles, that it “was considered as a conspiracy'in restraint of trade, and so far as a conspiracy to do an unlawful act affecting the public.” He distinguishes the case in hand as an indictment, for a conspiracy “ to commit a civil trespass/’ and as such not criminal.

Considering King v. Bales in the light of this case, it must be regarded as holding broadly that a conspiracy to do an injury to the public is indictable independent of any agreement as to the precise means by which it is to be carried out. Lambert v. People, 9 Cow. 578. The indictment here was for conspiracy to cheat a company. The statement of the means was general, as that the defendant agreed, by “indirect and unlawful means,” to cheat and defraud such company. It was held that the indictment was bad, but solely on the ground that the act of wrong was against a private person, and in such case an allegation of a false token was indispensable. The reasons assigned for the judgment rest on the idea that a statement of the means is not essential when the act intended to be performed is a crime or an injury to the public. Commonwealth v. Prius, 9 Gray 127. The question in this case is identical in- principle with Lambert v. People and received the same solution. State v. Rickey, 9 N. J. 293. The conspiracy in this case was to defraud a bank. It was held that the bank was to be regarded as a private person, and that the indictment did not charge a crime. The same concession is made in this case as in Lambert v. People, that a conspiracy to cheat the public is indictable as such without regard to the nature of the means intended for that purpose. State v. Mayberry, 48 Maine 218. The conspiracy was to obtain possession of securities by false pretences from private persons. It was held that ■Such a conspiracy was not indictable independently of the means by which it was intended that it should be consummated. Rice, J., says: “ When the act to be accomplished is itself criminal or unlawful, it is not necessary to set out in the indictment the means by which it is to be accomplished.” This is a clear recognition of the rule in question although it does not allude to that feature of the rule that places attempts to defraud the public as within the class indictable in themselves. The case did not suggest so full a statement of the cases to which the rule applied, but holding it as principle it must be regarded as a clear authority, as it regards all the consequences resulting from the application of the rule.

Commonwealth v. Shedd, 7 Cush. 514. Dewey, J., holds “ that a general allegation that two or more persons conspired to effect an object criminal in itself, or to commit a misdemeanor, or a felony, is quite sufficient, although the indictment omits all charges of the particular means used.”

It is clear on the authorities as iu reason that charging a conspiracy to defraud the state, as it regards its property or revenue, is indictable as such, although no agreement as to the definite means to be employed for that purpose is alleged. The appellant’s exceptions, based on the supposed insufficiency of the indict-met, should be overruled. The appellant’s exception, alleging that the Court of General Sessions, at which the indictment was found, was not duly and legally convened, because no petit jury was summoned or in attendance, is bad. To hold that would be equivalent to holding that if for any reason the venire for petit jurors or its return to the court fails, the court is without legal power to proceed with its' business, a proposition so obviously unfounded that it does not need particular consideration.

The grounds of appeal urged for a new trial will next be considered. The first is that the court erred in admitting evidence of the declarations of It. H. Gleaves and A. O. Jones, as conspirators, not made in the presence of the defendant before evidence other than that of an accomplice had been introduced to connect A. O. Jones with the conspiracy, as charged in the indictment. Counsel for appellant has not pointed out in his argument one exception on which this ground of appeal rests, and none has been found resting on the precise ground advanced. Even on the assumption that corroborating evidence was necessary, and that evidence of acts done and declarations made by the conspirators in pursuance of the conspiracy, had been offered and duly objected to on the ground that the testimony corroborating the evidence of the defendant’s accomplice had not been offered and it had been admitted, that would not constitute an error.

It would involve a question of the order of proofs under the control of the court. When proof of an independent fact is requisite to entitle a party to the introduction of certain evidence, the admission of such evidence, without demanding such proof, is erroneous. That is not a question of the order of proof merely, but of the right to make the proof at all. Tbe object of corroboration is to strengthen proofs already adduced, and not primarily to introduce new and independent facts, and as the evidence offered by way of corroboration must go to the jury with the evidence of acts performed and declarations made by the conspirators in pursuance of the conspiracy, the order in which they were introduced cannot be so material to the defendant as to be ground for exception.

The next ground is that the court allowed the witness, Wood-ruff, “ to refresh his memory by reference to a boob purporting to be a diary, written in phonographic characters peculiar to the witness, and such as could not be verified by the court, and to admitting the said book in evidence as against this defendant, and allowing entries, said by the witness to be there contained, to be translated and read by the witness to the jury.” The case shows that the book in question was referred to solely for the purpose of refreshing the recollection of the witness. The witness, it is true, read from the book, but that is not inconsistent with the use of the book for refreshing his memory; it was, at most, only anticipating what would probably have taken place under cross-examination at the defendant’s request had it not been called for by the counsel for the state. Nothing is found warranting the conclusion that the court and jury regarded the book as resorted to for any purpose other than that of refreshing the memory of the witness. To hold the doctrine contended for by the defendant would be to give immunity to witnesses locking up the contents of their memory in entries contrived to be intelligible to themselves only, to which they could always refer for their own advantage, but to which the court would have no access, however important that might be to the ends of justice.

Such a proposition cannot be tolerated unless established by authority that cannot be shaken.

The counsel for appellant produces no case holding that in order to have resort to such memoranda for the purpose of refreshing the memory of a witness, it must appear that such memorandum is made in characters intelligible to the court and jury without the aid of testimony. It must be presumed that no such case can be found, for it would be inconsistent with the principle of the rule allowing the memory to be refreshed by memoranda made at the time of the transaction to which the inquiry relates. The memorandum must be. the act of the witness and contemporaneously with the event noted, otherwise it would not necessarily be associated with the state of mind that existed when the impression on the memory was made, but, independently of this, it is of no importance, so far as it regards its capability of refreshing the mind of the witness, whether it was written in characters intelligible to the whole community, or in such as were capable of being translated only by' the party himself.

The witness could, doubtless, have given the key to the translation of the memorandum and showed how his method of phonography agreed with and differed from each of the systems commonly practiced, and counsel might have required such information on cross-examination. Had he done so the statement of the witness would have gone to the jury, so as to enable them to judge whether the entry was what the witness represented it to be. This is all defendant could properly ask. It is unnecessary to notice in this connection the discussion drawn from the rule of hearsay evidence and the rule governing the introduction of merchants’ books as against third parties, as these rules have no application to the present ease. It is contended the strength of testimony as refreshed is the clearness and certainty of the recollection of the facts recorded, after having examined the memorandum, and independently of the memorandum itself, and it was the right of the defendant to test this by cross-examination. The only way to get before the jury such legal considerations as should have weight in determining the force of the testimony, was through the charge of the court, wdiich might have been directed to such considerations. This ground of appeal should be overruled.

The next objection to the verdict relates to the admission of entries made in the books of the Republican printing company. It was proved that Woodruff and Jones, two of the conspirators, constituted the Republican printing company. It appears that the books were the business records of Woodruff and Jones. It was claimed that these books contained. memoranda of various transactions that belonged to the acts done by the conspirators in furtherance of the conspiracy. Among other entries $800 was passed to the credit of Woodruff and the same amount to Jones on February 5th-, 1874, the day on which the certificate in question was paid as claimed. It was also claimed that the amount thus paid to Jones and Woodruff corresponded with the amount to which they were entitled under the terms of the arrangement between the conspirators. It was clearly competent that such an entry in the books of Woodruff and Jones should go to the jury as evidence tending to strengthen the testimony connecting them ■ with the conspiracy. The presumption was that the entry was made under their direction, and the way of disproving that presumption lay in one asserting the contrary. The admissibility of the evidence there did not depend on its competency as a declaration of a conspirator to affect his co-conspirator. It was enough to render the testimony competent that it was admissible for any legitimate purpose. This objection is not well taken.

The fourth objection on the motion for a new trial referred to the circumstance that the attention of Woodruff was called to an entry in the books already referred to, and inquiry made as to whether it related to the transactions in question, and which appears to have been negatively answered. The appellant’s counsel moved to strike out the evidence, which was' refused, but no exception appears to be noted. At all events the counsel for the state had the right to call the attention of the witness to any particular memorandum and inquire if it related to the transaction in question, and it was not competent to strike out what was said in reply thereto. It is no ground to strike out evidence that it fails to amount to proof of what was intended by the party introducing it. It does not appear that the memorandum was claimed or read as affording evidence of the matters noted, but was noticed for the purpose of attracting the attention of the witness to the matters referred to in it. This objection is groundless.

The fifth objection, relating to the admissibility of testimony, is based on a ruling of the court admitting in evidence an account from the books of Woodruff and Jones. Although the court placed its decision admitting such entry on the broad ground that as a declaration of a co-conspirator, written by a party beyond the jurisdiction of the court, it was admissible, yet it does not appear that the question submitted involved any such question or consideration. The real question appears from the ease to have been identical with the exceptions already disposed of, and the conclusion of the court appears to be correct, whatever view may be taken of • the proposition submitted in deciding it.

There does not appear on the record any exception to sustain the appellant’s sixth objection, as it regards the admission of evidence relating to the Christopher certificate, and therefore that matter cannot be considered.

The seventh objection relates to questions propounded to the defendant by way of cross-examination, alleging that irrelevant matter was gone into, and that cumulative matter material to the issue was offered in reply to the testimony elicited by such cross-examination.

The only exception that appears in the course of the cross-examination of the defendant is to certain evidence called for by the state, and to which the defendant’s counsel made objection. The memorandum, as to the decision of the court, is as follows: “ The court held the testimony competent, being rendered so by the introduction of the Merriam certificate.”

The objection is not to any particular matter of evidence sought to be introduced, but as it is expressed, “ to this line of questions.” The counsel for the state had called the attention of the defendant, who was undergoing cross-examination, to a class of payments made ’in certificates for legislative expenses, among Avhich was the certificate called the Merriam certificate.’ This Merriam certificate was first introduced to notice by the counsel for the defendant upon the cross-examination of the witness, Woodruff. The fact with regard to it, as testified to by Wood-ruff, was that it was drawn as part of a series of certificates to fictitious persons, intended as the means of drawing money from the treasurer for the personal benefit of different state officers, and that the Merriam certificate was for the share of the defendant, Cardoza. Woodruff, in response to the inquiries of. the counsel for the defendant, testified that on the presentation of this certificate of the defendant, he, the defendant, caused it to be torn in pieces. Subsequently, when the defendant was examined-in-chief by his counsel, this certificate was produced, marked “canceled,” but not torn, as stated by Woodruff; such evidence being intended to destroy the credibility of the testimony of Woodruff, not confined, however, to the statement of the destruction of the certificate, which appears to have arisen as air incidental circumstance merely. On the cross-examination of the defendant the counsel for the state recurred to this subject, and endeavored to show that certificates of the same class with the Merriam certificate had in fact been paid by the defendant under circumstances that tended to charge him with guilty knowledge of the objects with which they were drawn. It must be fairly considered that the whole subject was opened by the counsel for the defendant by the introduction of the Merriam certificate. It would naturally be concluded, from the conduct of the defendant in the case of the certificate drawn for his own benefit, that he was a'party to the frauds of which that formed a part, and thus Woodruff’s testimony, as a whole, would be shaken by proof of such part obtained from that witness himself. It ’must be assumed that this formed part of the object of the counsel for defendant in opening that subject. Such being the case the question of relevancy cannot be considered on the part of the defendant’s counsel, who first opened it. The only inquiry is, whether the evidence elicited followed in the line of that introduced by the counsel for the defendant, so that the whole can be considered as a single subject, and it appears very clear that it did. In fact the defendant’s counsel limited his objection to the line of proofs, thus drawing attention away from the particular matters involved to the general bearing and tendency of the questions. After having entered upon that line of proof he was not in a position to object to its continuance in the same direction by the opposite side, so long as a new subject was not entered upon. This involves a very different proposition from the one familiarly understood, that the introduction of irrelevant testimony by one party does not justify the introduction of irrelevant testimony by the other side. It is enough to say that the counsel for the defendant introduced the subject, and he has no right to complain of its continued consideration. This view disposes of all the matters embraced in the seventh objection to the verdict.

The eighth objection is to testimony given by Solomon and Woodruff in-reply. No exception appears to any part of this testimony, so far as it regards that of Woodruff. The only exception that appears to the testimony of Solomon was to his stating a conversation with Governor Moses, but. it does not appear that any such conversation as the objection contemplated ■ was actually produced in evidence. The exception must be regarded as limited by the character of the testimony received under it. The other matters alleged to have been gone into, stated by the defendant as prejudicial to his case, cannot be considered for the want of an exception to cover them. What has just been said disposes of the matter of the ninth, tenth and eleventh objections.

The remaining objections relate to the charge of the court. Many objections to the charge are stated in the grounds of appeal, some of which are not noticed in the points and argument, and as all matters intended for consideration are required by the rules of this court to be noticed in the points submitted, we must assume that the matters not so presented are intentionally abandoned by the appellant and they will not be considered. The various points made by the appellant will be considered in the order stated in the points and argument.

The sixth objection is that the court instructed the jury that the fourth count of the indictment could be sustained. This ruling is in accord with what has already been said. .

The seventh objection states that the court instructed the jury that the entries in the books of the Republican printing company were made before the conspiracy had been consummated, and contemporaneously with the transactions, and were entitled to be considered in the corroboration of the accomplices. This statement does not exactly conform to the statements of the record. A request to charge was made on this point by which it was sought to exclude the entries in the diary of Woodruff and the books of the Republican printing company from operating as corroborating evidence.

The record states that this had been charged in part and in part had not, but as the charge, as given, is not set forth, we cannot infer what that charge was, unless such is the necessary-inference from what follows on the record.

The court said: “ This evidence has already -been admitted by the court for this reason, that when these entries were made in the note-book of Josephus Woodruff the conspiracy had not been consummated, and, therefore, that they were declarations of Woodruff and Jones in furtherance of the conspiracy.” This statement appears to relate wholly to the note-book of Woodruff, with which it does not appear that Jones had anything to do, and yet the statement follows, “ and therefore that they are the declarations of Woodruff and Jones in furtherance of the conspiracy.”

■ There is evidently something omitted from this statement that it is probable might be supplied if the whole charge was produced. Subsequently the court states: “ But these entries were made contemporaneously with the transactions, and they are not unsupported corroboration, but are facts noted down at the time of the transaction, and, therefore, may go in corroboration of the accomplices.” It is very evident that corroboration was here meant in its general sense as something tending to produce conviction of the truth of previous testimony. There was no technical question before the jury as to whether corroborating evidence existed in the case sufficient to warrant the jury in finding according to their conviction, as to the truth or falsehood of the oral testimony given. They must have understood the court as charging that as it regards the degree of credibility to be ascribed to the testimony of the parties where memoranda were produced, it was in support of their credit that they made such memoranda contemporaneously with the transactions to which the testimony related.

There was other corroborating testimony than that afforded by these memoranda; such, for instance, as the undisputed fact that the defendant paid the certificate drawn to a fictitious person, without inquiry as to the truth of the endorsements thereon. No question could arise as to whether the state was at fault for want of evidence to corroborate the testimony of co-conspirators. Whether necessary or unnecessary, such corroboration had been submitted, and its force alone was to be determined by the jury. Nor did the actual issue before the jury depend on acts and declarations of co-conspirators done and made in pursuance of the conspiracy. Such acts and declarations are of importance where the terms of the conspiracy have to be made out presumptively from the nature of the transactions following such conspiracy, ■and where the fact of such conspiracy is established. In the present case the terms of the conspiracy were the subject of direct proof, and the only real issue was the credibility of the co-con•spiraf rs. So the question was really narrowed down to that of the c idibility of the witnesses, Woodruff, Jones and Lee; and, as blaring on the credibility of the parties who made or authorized the memoranda, the entries were proper to be considered by the jury, so that'if made when and for the purpose they imported, they should be considered as circumstances giving support to such oral testimony.

This objection is not well taken. State v. Brown, 3 Strob. 508.

The eighth objection, as to the necessity of proof of a false token, has already been disposed of.

The ninth objection relates to the ninth request to charge, which was refused. This instruction was properly refused, as it involved the charge of the judge as to matters of fact.

The tenth objection is based on the refusal of the judge to charge that the payment of the check in the ordinary course of business in the office of the state treasurer, was not to be considered as confirmation of the evidences of the accomplices in the case. It cannot be considered that payment of a certificate or draft by the state treasurer, without any attempt to verify the identity of the person claiming to be entitled to payment, is in the due and ordinary- course of business. It was clearly an act for which the defendant must be presumed responsible, and it was competent for the jury to weigh the circumstances as bearing on the question of guilty knowledge on the part of the defendant as to the character of such paper. This would lead to the conclusion that a charge excluding the jury from such examination, such as was requested by defendant, would not have been proper.

The matter of the eleventh objection has already been considered, and the conclusion reached that the means employed were of a nature to cheat and defraud the state.

There was no error in the charge made upon the twelfth request. The whole matter was left for the consideration of the jury with remarks on the part of the court that have already been explained. It is not possible that the jury could have drawn any conclusion from these remarks prejudicial to the defendant.. The court stated its former ruling in regard to the Merriam certificate, and its adherence to the ground on which that decision was made, but gave no instruction as to the legal effect of such-testimony. It would have been' manifestly improper to charge-that such evidence was entitled to no weight, as it might have a bearing on questions of credibility as affecting the testimony of' the witness, Woodruff, and defendant.

The majority of the court having overruled all the exceptions,, the appeal must be dismissed.

We concur in the judgment herein announced, but cannot concur in the reasonings on the question of peremptory challenge, on which point we have filed our separate opinions, differing between ourselves in the reasons but agreeing in the results.

Henry McIver, A. J.

A. C. Haskell, A. J.

---

Concurrence Opinion

Separate Opinion by

Mol ver, A. J.

I concur fully in the conclusions reached by the Chief Justice except that in reference to peremptory challenges of jurors claimed by the defendant and disallowed by the Circuit judge. As to that matter I am entirely satisfied that the ruling of the Circuit judge, in refusing to allow the defendant to challenge peremptorily the two jurors,. Wiley and Fields, was correct, whatever differences of opinion may exist as to the reason given for such ruling. -

In my judgment the act of 1871 — re-enacted in General Statutes, Chapter CXI. — was designed to effect, and did effect, a radical change in the mode previously established of organizing-a jury for the trial of a misdemeanor. The purpose was to-establish marked differences in the mode of obtaining a jury for the trial of any criminal case, whether capital or not, from that prescribed for civil cases.

In Section 19 of that chapter, (being Section 16 of the original act,) the mode of obtaining juries for the trial of civil cases is distinctly pointed out, and the distinguishing features of this mode are:

1. That the persons summoned as jurors shall be arranged in alphabetical order, the first twelve constituting the first jury and the next twelve the second jury.

2. That this arrangement shall be made “ on the day when the jurors are summoned to attend;” that is, the first day of the term.

The effect of this mode of organizing the juries is that it is distinctly known from the beginning of the term who are the persons that will compose the two juries for the trial of civil causes during the whole of that term. But in Section 22 of that chapter, (being Section 19 of the original act,) it is declared that “ nothing contained in the preceding section shall apply to the impaneling of juries in criminal cases, but the jurors shall be called, sworn and impaneled anew for the trial of each case, according to the established practice,” &c. This, to my mind, evinces an intention that the juries for the trial of all criminal cases shall not be organized in the mode prescribed for civil causes; that is, shall not be arranged in alphabetical order, and shall not be organized on the first day of the term, but that they shall be organized “ anew for the trial of each case,” according to the established practice, viz., by lot, and not in alphabetical order. So that for the trial of any criminal case, whether capital or otherwise, the law requires: 1. That the persons who are to compose the jury shall be selected by lot; and, 2. That they shall not be so selected on the first day of the term, but such selection must be made “ anew for the trial of each case.” These two requirements are not formal, but material in their character.

It certainly is not necessary to show this in regard to the first, and it seems to me that it is equally unnecessary to enter into any argument to prove that the second is material; for it manifestly is very material for the accused to know beforehand who are the persons to be presented to him for challenge, and the order in which they will be presented; for that was one of the main reasons why the ninety-seventh rule of court was so rigorously assailed in the case of State v. Price, 10 Rich. 351, and in State v. Boatwright, 10 Rich. 407.

Section 22 of this chapter, (being Section 19 of the original act,) having thus declared that in criminal cases the selection of jurors should be made by lot, and should be made anew for the trial of each case, and not on the first day of the term, proceeds to declare how the lot shall be conducted, viz.: “ According to established practice.” This, it seems to me, is tantamount to declaring that the lot shall bo conducted in the manner pointed out by the ninety-seventh rule of the former court, re-adopted by the present court in practically the same language as the twenty-sixth rule of practice in the Circuit Courts. For, prior to the adoption of the act of 1871, incorporated in the General Statutes, the “ established practice ” in obtaining a jury for the trial of criminal cases was different in misdemeanors from that in capital cases. In the former the juries were organized on the first day of the term by lot, and, as so organized, they constituted the juries for the trial of all cases of misdemeanor which might come up for trial during that term, subject only, just as in civil cases, to such changes as might be occasioned by challenges either peremptorily or for cause, while in capital cases the jury was organized anew for the trial of each case in the mode prescribed by the ninety-seventh rule of court.

To which practice, then, do the words “‘according to the established practice,” as used in the section under consideration, refer ? They cannot refer to the practice previously prevailing in cases of misdemeanor, because, according to my understanding of that practice, the juries were not organized anew for the trial of each case, but were organized on the first day of the term for the trial of all cases of misdemeanor which may be presented for trial during the term, and this mode of proceeding is distinctly forbidden by the previous part of the section.

These words, therefore, must necessarily refer to the practice in capital cases, as every one will admit that, under that practice, the jury was organized “ anew for the trial of each case.” This being s», it follows that the Circuit Court erred in the mode which it adopted in presenting the jurors for acceptance or rejection, but as no exception was taken upon this ground, possibly for the reason that it operated in favor of the defendant, as it informed him beforehand who were the first twelve persons to be presented, such error can furnish no ground in this court for granting a new trial.

If, then, I am right in concluding that the proper mode of presenting the jurors in this case was not adopted, and that they should have been drawn anew and presented according to the established practice in capital cases, it follows necessarily that there was no error in refusing to allow the defendant to challenge peremptorily the two jurors above named. For, according to that practice, it was necessary for him to dispose of each juror as he was presented, either by accepting or rejecting him, before he could proceed to challenge any juror subsequently drawn; and if, as in this case, twelve jurors instead of one be presented at once, it would have been equally necessary for him to dispose of the twelve so presented, or of the ten which remained after the challenges on the part of the state had been allowed, before he could reach the two, Wiley and Fields, who were drawn subsequently to the drawing of the original twelve. If he had accepted the remaining ten and they had been sworn, as would have been proper under the established practice, then unquestionably he would have had the right to challenge peremptorily the two jurors above named as well as the three next who might have been drawn. But in this case, before he could, under the established practice, reach these two jurors, he had exhausted his right of peremptory challenge by challenging five of the original ten. His real ground of complaint, therefore, is, not that he was denied the right of challenge — for as the record shows he actually did exercise such right to the full extent allowed by law, by challenging five of the jurors who were originally drawn and presented — but that he was denied the right of selections, which, as is said in State v. Wise, 7 Rich., at page 416, upon the authority of United States v. Marchant, 12 Wheat. 480, is an altogether mistaken view of the right of challenge, which is a mere right of exclusion and not a right of selection, and the right of exclusion will not be allowed to be exercised in such a way as to draw after it the right of selection.

The judgment of the Circuit Court should be affirmed.^*

* See separate opinion of Judge Mclver in State v. Smalls, post page 287.

---

Concurrence Opinion

Separate Opinion by

Haskell, A. J.

I concur in the conclusions arrived at by the Chief Justice on each point submitted for consideration, except his conclusion upon that which relates to the exercise of the right of peremptory challenge. From that conclusion I am compelled to dissent, and will state my reasons briefly, first tracing an outline of the law and established practice on which those reasons depend. When the act of 1841, “to extend the right of challenge to jurors,” was passed, the law on the subject of impanelment of jurors was as follows: “The jurymen attending, under the venire being called, their names are put in a hat and juries Nos. 1 and 2 are formed by alternately putting down the names as they are drawn, and when the number of each is completed it is usual for the clerk to have a list of the supernumerary jurors made out as their names are drawn for the ordinary business of the court, whére vacancies are filled up wider the order of the court and in capital cases.” City Council of Charleston v. Kleinbeck, 2 Spears 418.

These juries, one and two, were organized and sworn at the commencement of the term and were ready for the trial of civil causes and misdemeanors, the only difference being that in misdemeanors the jurors were sworn anew in each case to try the traverse. In cases of felony the rule was different. The juries Nos. 1 and 2 were not presented in their entirety as ready for the trial of a capital case, but in such cases it was “ the practice to present to the prisoner the jurors for challenge, beginning with the foreman of jury No. 1 and running through the petit and plea jurors Nos 1 and 2 impaneled and sworn, and then to present successively the supernumeraries as drawn on Monday.” State v Brown, 3 Sfrob. 508. The act of 1841 made no change in the manner of organizing the juries. It enacted “that hereafter in all civil cases in which a jury shall be impaneled, before they shall be charged with the trial of any issue, each party shall have the right to challenge, without cause shown, two of the jury so impaneled, and in all criminal cases in the Courts of General Sessions wherein challenge without cause is not allowed by law, the defendant shall have the right to challenge, without cause shown, two of the jury before they are sworn to try the traverse; and the places of the jurors so challenged shall be supplied as now provided by law for completing a panel.” Stat. at Large, Vol XI.,p. 154.

The last clause providing for the completion of the panel of necessity applied to both the preceding portions, and embraced alike civil cases and misdemeanors.

In the first place, it would be impossible in a misdemeanor case to complete the panel by the mode pursued in a capital case, as appears without argument upon comparison of the two systems of practice. And, in the next place, there was, at the time the act was passed, a settled practice, applicable alike to civil cases and cases of misdemeanor, (this is not disputed,) which regulated the filling of vacancies in the jury occasioned by removal for cause shown, or by absence or otherwise. The circumstances are precisely analogous where a juror is removed by peremptory challenge, for another juror must be supplied to complete the panel • and there can be no doubt that the mode already of force in the case of a juror removed for cause, is the mode referred to in the act of 1841 by the words “as now provided by law.” What was the practice as then provided by law ? The ordinary practice was to fill the place by taking the name next in order on the supernumerary list, but it was held to be “ entirely competent for the court to order any supernumerary juror in attendance to take the vacant place. This will be done in all instances where there is no objection made by one of the parties. Where there is any just reason to believe that a seat has been vacated by one juryman to enable a party to supply his place with another, or where such vacancy has been procured by one of the parties, it would be proper to require, and either party in such case might always require, the names of the jurymen referred to to be subjected to another drawing.” Council v. Kleinbeck, supra. That was the practice prior to the act of 1841, and it is not questioned that the practice was the same in civil cases and misdemeanors up to that time, except that in misdemeanors the juries were sworn anew to try the traverse. The latter rule of practice above indicated seems to have been deemed necessarily the proper course where, by the exercise of peremptory challenge, it was putin the power of parties to “procure” a vacancy, and the court proceeds to say: “ It is necessary, as it respects challenges under the act of 1841, that a somewhat different practice should prevail, and that a more uniform rule should be laid down. Under that act the parties themselves are actors, and they should not be permitted to make their challenges with any view to looking to any particular juror on the supernumerary list as a substitute for the one that may have been withdrawn by challenge. In this respect the challenge should be made as though it were founded in some positive objection to one or two of the panel, and with no view of acquiring undue advantages by having certain others substituted in their place, which might frequently be the case were the list from which they were to make their selection to remain unchanged — that is to allow the jurymen to be called as their names had been previously set down. To obviate all objections of this kind, and to remove all temptation on the part of juries and parties from entering into a criminal understanding, we would lay down this as an uniform rule of practice, that whenever either party on the record claims the right of challenge the names of the jurors not impaneled, if they have been previously drawn and set down, shall be subjected to lot again, and the parties, unless they can show cause, must tahe them as they stand thus drawn.” Id. The principle which is contained in the law as thus announced was afterwards extended to capital casés by the ninety-seventh rule of court, adopted in 1856, (10 Rich. 549,) and sustained in State v. Price, Id. 351, and State v. Boatwright, Id. 407. In the case just cited (Council v. Kleinbeck) the court laid down what it understood to be the manner “as now provided by law for completing a panel,” and applied that manner to fit the act of 1841, and thus established the practice which has never been changed, unless by the act of 1871,-which will, hereinafter be considered. The only subsequent case directly in point is that of Durant v. Ashmore, 2 Rich. 184, also a civil case. In that case “ the plaintiff's counsel then challenged, under the act, the foreman, and he came off. The counsel for the defendants challenged, on their part, another juryman, which made two vacancies. The. names of the supernumerary jurors were put in a hat and two were drawn, when the plaintiff’s counsel claimed the right to challenge one of them, when, an objection being made, his Honor overruled the right to challenge except for cause made.” The ruling was by Butler/ J., who had delivered the opinion of the court in City Council, (fee., v. Kleinbeck. In the Court of Appeals, (opinion by O’Neall, J.,) it was held that “after jurors have been challenged and others have been drawn in their places, neither party can, under the act of the legislature, challenge the jurors so drawn.” State v. Kleinbeck, 2 Spears 418; Durant v. Ashmore, 2 Rich. 184.

It is contended, first, that this case fixes the rule only as to civil cases; and, second, that the principles it sustains admit of question, because they are founded upon a misapprehension of what really was decided in City Council v. Kleinbeck. It is enough, on this point, to say that the probability is strongly' against any such mistake as that which must be presumed to-sustain such a proposition. The act of 1841 was recent, its constitutionality was in doubt, and was afterwards decided in Creiger v. Bunton, 2 Strob. 487, by a majority of the court, O’Neall, J., and three other members of the court dissenting. Thus it is apparent that the act had been subjected to jealous scrutiny from its inception. Further, the same eminent judge who had delivered the opinion in Council, &c., v. Kleinbeck, and had there undertaken to expound the whole jury system as it stood, and to apply thereto the act of 1841, was the judge who ruled on Circuit in the case of Durant v. Ashmore. All the probabilities are against the supposition that he was governed by any misapprehension as to what had been announced as law by him in Council v. Kleinbeeh, and his ruling was affirmed by the Court of Appeals. Not only, therefore, are the principles sustained in Durant v. Ashmore, but the decision in that case was final upon the point, and has never been overruled. Butler, J., lays down the rule in the language above cited, “ and the parties, unless they can show cause, must take them as they are thus drawn.” There can be only two constructions to this sentence. One is, that the parties must submit to sucb mode of drawing unless they can show cause against it. The other is, that they must accept as jurors the parties thus drawn, unless they can “show cause” against them as jurors, such as legal disability, partiality or the like. The latter seems to me to be the construction fully sustained by the context, and to be the most reasonable.

The real question, therefore, is not about what is the rule established in Council v. Kleinbeck and Durant v. Ashmore, but whether that rule applies to the whole act of 1841, and therefore embraces misdemeanors, which are described in the act as “ criminal cases in the Courts of General Sessions, wherein challenge without cause is not allowed by law.” It has been already said and cannot be questioned, that when the act of 1841 was passed the law was exactly the same in civil cases and misdemeanors with regard to the formation of a jury and the manner of com.pleting the panel in the event of a vacancy occurring. The only difference being, as already said, that in a misdemeanor, after the panel was completed, the jurors had to be sworn anew. The rule, as above stated, was the law in civil cases, not because it was so announced, but because it was made law by the act. The rule therein announced was the law for the completion of a panel as the law stood at the time the act was adopted, and by the act-the same was made law for the completion of the panel when a vacancy occurred under the act. The same was the pre-existing law in misdemeanor cases; the same was the provision for vacancies occurring by reason of the act in misdemeanor cases, and the conclusion is unavoidable, that the rule, as laid down by the court, must be applied in a misdemeanor case exactly as it was applied by the court in a civil case. Besides, if the rule of challenge and completing the .panel, in misdemeanor, is not the same as in civil cases, there can be no other rule than that which prevails in capital cases; and, as already shown, the application of the practice in capital cases to a jury organized to try a misdemeanor, was, as the law then stood, a practical impossibility. This is forcibly illustrated by examining the forms and details of practice contained in Miller’s Compilation, pp. 140, 149, Nos. 24, 28, 59, &c. In case of misdemeanor: “ Of jury No. 1, E. D. is excused from sitting. E. L. being a kinsman of defendant, is challenged for cause on the part of the state, and G. T. and T. L., supernumeraries, substituted. E. P. and M. J. are peremptorily challenged by the defendant, and A. P. and S. B. drawn from the supernumeraries in their room, the jury then consisting of,” &c. Miller 149. The authority of the forms in Miller is unquestionable. Many of the rules of practice which had descended from hand to hand for many generations would have been lost during the years of revolution recently passed, had they not, by the unselfish industry of one of the best-versed and most accurate members of the former bench, been collected and perpetuated in this invaluable little volume of practice and forms. By comparison it will be seen that the ruling of the Circuit judge in the case before us, and the entire proceeding with regard to the jury, was mutatis mutandis, in exact conformity to the old practice under the act of 1841, and the law as it stood at that time. The question, therefore, to be considered is, whether the law, in such respect as affects the point in question, has been changed since 1841.

The act of 1871, p. 690, “An act to regulate the manner of drawing juries,” repeals the jury act of 1868-9, “ and all other acts and parts of acts in any way conflicting with the provisions of this act.” This act is re-enacted in the revised statutes, and is of the same force and effect as when it was passed, notwithstanding the repeal of the pre-existing jury acts by the act which established the revised statutes. We must endeavor to ascertain to what extent the law, as it stood in 1841, after the passage of the act, is in conflict with the act of 1871. Rev. Stat, § 19, 522. It is patent that an important change is effected by the act of 1871, with regard to the formation of juries for civil causes, and that the right of peremptory challenge in misdemeanor cases is enlarged to two on the part of the state and five on the part of the defendant. But the question is whether the manner of forming a jury or of exercising the right of challenge is changed as to misdemeanor cases by the act of 1871. Section 19 of the act (Rev. Stat., § 22, 522,) is as follows: “ Nothing contained in' the preceding sections shall apply to the impaneling of juries in criminal cases, but the juries shall be called, sworn ,and impaneled anew for the trial of each case, according to the established practice, and their foreman shall be appointed by the court or by the jury when they retire to consider their verdict.” All the preceding sections relate to the. drawing and summoning of jurors or to the formation of juries for the trial of civil causes. It is well to note that they contain no provision for the formation of juries for the trial of criminal cases, either misdemeanor or felony. It cannot be said that the provisions for the formation of juries for civil causes extend to misdemeanors, for the .words are imperative: “Nothing contained in the preceding sections shall apply to the impaneling of juries in criminal cases.” The succeeding sections relate to other subjects. We are, therefore, forced to conclude that juries for the trial of cases both of felony and misdemeanors must be formed out of the jurors summoned in the manner provided by law prior to the passage of the act of 1871, subject only to the change as to the right of peremptory challenge, (Section 37 of the act, and Rev. Stat. 748, § 3,) and to any change or modification that may be contained in Section 19, which is above cited in full. As regards that section it is argued that the words “ called, sworn and impaneled anew for the trial of each case ” limit the meaning of the words “ according to the established practice ” to cases of felony; because, as it is said, under the former .practice the jury was not “called, sworn and impaneled anew ” in each case of misdemeanor, but was so “called, sworn and impaneled anew” in each case of felony.

There are two answers to this. First. I admit that the nineteenth section embraces all criminal cases, for although the two classes are more properly designated by the terms “ crime ” and “ misdemeanor,” yet, in common language, both are described by the word “ crimes,” as in the act of 1841 that the word is used to express misdemeanors alone. It will not be disputed that there were, prior to the act of 1871, and subsequent, if not affected by that act, two distinct, established modes for the organization of juries — one for the jury in misdemeanor cases; the other for the jury in cases of felony. If it had been the intention to abolish one of these two modes, and subject both classes of cases to the other mode, it would have been easy to have expressed it definitely, as by saying, in this instance, “according to the establisted practice in capital cases.” It is against all rule to construe by implication the repeal of an important law, if it can be reasonably avoided. If the words “ called, sworn and impaneled anew ” can be shown to apply in part to each class of cases, so as, when taken in the light of a general act, it makes provision for each, and such construction is not repugnant to the context, and will prevent the repeal of laws which are not expressly repealed, we are bound to adopt it and give to the law its full force and effect. To illustrate: No one will deny that, under the law as it was, in each misdemeanor case the jurors who had been previously generally sworn were sworn anew to try the traverse. Now, suppose that in a capital case the jury was only called and impaneled anew, and a general act was passed, as in the present case, not repealing distinctive acts relating to the two classes of cases, but containing words thus descriptive of each class. I contend that these words “ called, sworn and impaneled ” would be descriptive of the separate classes in their distinct character, and would not of necessity reduce them to one class, and thereby by implication repeal the distinguishing or conflicting statutes— one class being designated by the descriptive word “ sworn,” the other by the words “called” and “impaneled.”

But, secondly: I go much further, and think that under the then established practice the jury was “ called, sworn and impaneled anew for the trial of each case ” of misdemeanor, as well as each case of felony. Any one who is at all familiar with the practice is aware that'the term’“call” is entirely distinct from the “drawing” of jurors. In every case the jury is “called” by the clerk of the court to ascertain who of the jurors are present, and whether the jury is ready for the trial of the cause. The word has absolutely no other significance. The order of the court is familiar, “ Mr. Clerk, call over the jury,” and incident to every trial, and can properly only be done after the jurors have been drawn and the jury organized. Under the practice prior to the rule of court adopted in 1856, Rule 97, which is Rule 26, adopted in 1870, the following was, in a capital case, the form at the trial: “ Clerk — Having a list of all the jurors in attendance arranged in order, (2 Bail. 32,) to wit: First, jury No. 1; second, jury No. 2; third, supernumeraries, as they were originally drawn, * * * and having called all over to ascertain which are in attendance, addresses the prisoner in the dock,” &c. Miller, p. 155. That expresses the whole meaning and purpose of the “call” of the jury, even in a case of felony. This was not changed by the Rule 97 or Rule 26, for before the jurors’ names could be put in the hat or box to be drawn it had to be ascertained who were in attendance, and the clerk had to go through the call of jury No. 1, jury No. 2, and the supernumerary list, which had to be previously organized under the law, for the rule of court could not dispense with the previous formation of the respective juries and the supernumerary list. The conclusion, therefore, is plain that the requirement that the jury should be “called” anew for the trial of each case, does not of necessity mean that a misdemeanor case shall be governed by the rules of practice regulating the formation of juries in eases of felony.

The second requirement, “sworn anew,” does not demand argument. It is the recognized law that in every case of misdemeanor the jury has to be sworn to try the traverse before it can be charged with the case. It is equally well known that under the jury law then of force, (and still of force, if the views here expressed be correct,) the jurors had been jmeviously sworn to organize juries No. 1 and No. 2, and, consequently, that by administering the second oath the jury is as well sworn anew in a misdemeanor case as in a capital case.

On the third point, that the jury shall be “impaneled anew for the trial of each case,” there appears to be nothing inconsistent with the proposition that it is met by the practice in misdemeanor as well as in capital cases. The jury was originally formed by the selection of twelve men by the sheriff, their names were written on a schedule and the jury was then said to be “ impaneled,” and that of “ twelve men ” was to try the case. Therefore a jury, in the strict sense of the word, is said to be “impaneled” when it is ready to be charged with the case. 1 Whart. on Am. Qrim. Law, § 590. The right of challenge subsequently arose and additional jurors had to be summoned to complete the panel, in the event that any members' of the jury first impaneled and ready to try the cause should be removed by challenge or otherwise. Thus the panel of a jury can be formed or “ impaneled,” and the panel can be broken and be re-formed or impaneled anew, according to. the rules or requirements in every case. And again in a capital case, prior to Rule 97 or Rule 26 of 1870, if neither the state nor the prisoner challenged a juror — although the panel had not been broken, and the case would be tried by the entire panel as it was first organized — it was nevertheless considered to be “ impaneled anew,” because it had been organized anew by the ceremony of presenting the jurors to the prisoner and swearing each juror anew. There is no difference in principle between that case and the practice in misdemeanor, where the jury is presented in a body or as a whole, instead of one by one, and subjected to a challenge, and then, and not until then, sworn anew to try the traverse and ready to be charged.# It may be admitted that this is so, yet that the case, does not apply, because, under the rule of court, the jury No. 1 or No. 2 could not be 'accepted as a whole, for the names are put together and drawn by lot. The answer to that is, that the rule of court is not a part of the statutory law and is distinct • therefrom. Tlie rule could be repealed at any time, and then the proposition could not be disputed. It is certain that the legislature did not contemplate the rule of court as affecting a statute, and certainly it would be very extraordinary for the court to recognize it in any such light.

My conclusion, therefore, is, that the jury having been “impaneled ” when jury No. 1 and jury No. 2 were organized, and being then presented for objection to the prisoner and to the state, and having to be re-sworn before it can be charged with the trial, it is, of necessity, impaneled anew for the trial of each case, whether it be felony or misdemeanor, independently of Section 19 of the act of 1871.

I am, for these reasons, unable to perceive any force in the argument that the eighteenth section of necessity brought misdemeanor cases within the rules applicable to the formation of juries in capital cases. Nor do I perceive any such effect from the thirty-seventh section of the act of 1871, re-enacted in Revised Statutes, p. 748. The only argument is that the number of challenges is increased and the right extended to the state, and that the act of 1841 is repealed by the act of 1872. Rev. Stat. 830. The act of 1841 was not repealed by the act of 1871, according to my opinion,, and the provision contained in the Revised Statutes 748 was the Section 37 of the act of 1871. The act of 1871 not having repealed the act of 1841, was governed by its provisions where not in conflict with its own, and the act of 1871 was not repealed by the act adopting the Revised Statutes, and is, therefore, still of full force and effect, and its construction must be principally governed by what was manifestly its meaning at the time when it was adopted. The right of challenge, as given in the act of 1871, was unquestionably to be governed by the provisions contained in the said act and by the law as it then stood, not repealed by or in conflict with said act. But apart from this, if all the acts with regard to jurors prior to the act of 1871 be repealed in form 'by the Revised Statutes act, they are all brought into force in criminal cases of both clauses by the words of Section 19, “ according to established practice,” and to that practice we must look for our rule, and in each case where there is no statute now of force be governed by the “ established practice.” I am, therefore, for the reasons thus briefly and too crudely stated, led to the unavoidable conclusion that there was no errof in the ruling of the Circuit judge on the point submitted, and therefore that the appeal should be dismissed and motion refused."

But suppose that my construction as to the jury law is erroneous, and that the opinion which I understand to be entertained by the Chief Justice and the other Associate Justice on that subject is correct, viz.: That by tlieact of 1871, Section 19, the jury law is made the same in cases of misdemeanor as in eases of felony. Then, such being the premises, I fully concur in the conclusion deduced therefrom by the other Associate Justice, for, in my opinion, it rests upon principle. In the organization of a jury in a case of felony the principle which governs the exercise of peremptory challenge is, as I understand it., as follows: That the state and the prisoner must dispose of each juror in the order presented before the right of peremptory challenge can be exercised with respect to any other juror. Now, whether by law or by irregularity (no objection being taken at the time and the irregularity not affecting any substantial right), several jurors be presented at once, or the whole twelve being presented at once, the same principle must govern, and the state and the accused must accept or object to and in effect dispose of the entire number thus presented, and those not objected to be sworn before either party can challenge peremptorily any other juror. In this case the whole twelve were presented together, and when the defendant attempted to challenge two supernumerary jurors who had been drawn to fill two vacancies occasioned by peremptory challenge on the part of the state, he, the defendant, had not accepted or objected to any of the remaining ten of the twelve originally presented, and, therefore, the twelve had not been disposed of, although presented. The defendant then proceeded to dispose of the remaining ten, and did not after disposing of them renew his objection to the first two drawn to fill the vacancies. The ruling of the judge was, therefore, right at the time when the objection was made, and whether he stated a wrong reason is immaterial; the defendant was bound to make his objection at the proper time. But the defendant could not renew his objection because he had exhausted his right of peremptory challenge by having challenged peremptorily five of the jurors originally presented. He, therefore, by his own action, waived his exception to the ruling and has no ground in either view on which to rest his appeal.

The irregularity in the presenting of the jurors, (for it certainly was irregular if the practice in capital cases was to govern,) so far from affecting a substantial right, was in favor of the defendant, for it was directly in face of Buie 97 adopted in 1856 and Buie 26 adopted by the court in 1870, and informed the defendant in advance of the order in which twelve jurors would be presented, and made the right of peremptory challenge an instrument for the selection of, instead of objection to, jurors which the rule of court was meant to prevent. So again the irregularity in the order in which the two supernumeraries were drawn, (if it was an irregularity,) did not affect a substantial right of' the defendant, but was favorable to him, and as is indicated in State v. Brown, 3 Strob. 508, was really an advantage to the defendant, for he thereby knew in advance who would be the first two presented to him after the ten who were then before him had been disposed of, and to that extent gave him the means of selection in addition to his right to object. This, of course, is said upon the presumption that the practice in capital cases is to govern, in which I cannot agree. But upon either of the legal premises submitted the appeal should be dismissed and the judgment of the Circuit Judge affirmed.

Appeal dismissed.