| R.I. | Jan 26, 1880
The defendant being indicted in the Court of Common Pleas, pleaded in abatement "that one of the grand jurors who was taken up on venire, to wit, one Benjamin W. Healy, of the city and county of Providence, was not, when impanelled and sworn, and during the sitting of the grand jury and when the indictment was found, qualified to act as a grand juror, not being qualified to vote on any proposition to impose a tax or for the expenditure of money in said city or in any town in the county." The plea was demurred to and overruled. The case comes before us by a bill of exceptions which raises the question whether the plea was rightly overruled. The attorney general contends that it was on two grounds.
1. The plea is predicated on Gen. Stat. R.I. cap. 189, § 1, to wit: "All persons who are qualified to vote upon any proposition to impose a tax or for the expenditure of money in any town, shall be liable to serve as jurors, except as hereinafter provided." The section, it will be observed, declares who are liable to jury duty, not who are qualified for it. The attorney general therefore contends that any person, having the common law qualification, is qualified for the duty, though he may not be liable to it. This is a possible view of the law, but nevertheless we think it is specious rather than sound. Any one who will take the trouble to examine the legislation of the State will find that jury service has always been regarded rather as an unwelcome duty than as a coverted privilege. Exemption from service has been treated as the privilege. Hence it is, doubtless, that the persons designated for jurors are spoken of as persons who are liable instead of qualified to serve. Many exemptions are allowed only in consideration of other public services, and it is therefore highly improbable that any class of citizens qualified to serve would be gratuitously excused otherwise than by special exemption. In our opinion it was intended that, subject to such exemptions, the liability to service should be the test and measure of qualification. And this has been the practical construction of the statute, not only by the various town councils, in making up their jury lists, but also by this court, as is apparent from the time-honored formula used in capital trials, in which the question addressed to the juror to ascertain if he is qualified, is expressed in the words in which the *494 statute declares the liability. We think the statute must be regarded as a revision of the common law, superseding it. Sedgwick on Statutory and Constitutional Law, 105; Commonwealth v. Cooley, 10 Pick. 37.
2. The attorney general contends that the objection comes too late after the jury has been impanelled and sworn. He cites cases which hold that such is the rule; Commonwealth v. Smith,
We do not think the plea is bad for either of the reasons assigned. We think, too, the plea is sufficient in point of form, however it might have been if the juror had been drawn, see TheState v. Middleton, 5 Port. 484; for we know as matter of practice, that a grand juror taken up on venire is immediately impanelled and sworn. The exceptions are therefore sustained and the indictment quashed.
Exceptions sustained.