People v. Stuart

Appeal from the District Court for Trinity County.

The opinion contains a statement of the case.

*lst. The Court erred in refusing to set aside the [219] indictment on the motion of the defendant. The Act to Eegulate Proceedings in Criminal Cases, passed May 1st, 1851, provides, in section 278, for what causes indictments may be set aside; the first of which is, “where it is not found indorsed and presented as prescribed in this Act ” In the case at bar the indictment was found solely on the depositions of witnesses taken before the committing magistrate. The witnesses were not examined before the grand jury, though they were within the county, and might have been called to testify. Section 209 of the same Act is relied upon, on behalf of the People, to establish that such proof was sufficient, and that the witnesses need not be called. But, though this section contemplates that such depositions may in some cases be admissible, it is scarcely probable that it was designed to dispense with the oral examination of the witnesses, when the witnesses were at hand and could be produced without difficulty. In matters affecting life and liberty, the demeanor of the witness under examination may become a matter of the utmost consequence to the accused, • and if the grand jury, even in capital cases, may act solely on the depositions taken before the committing magistrate, and not trouble themselves to examine the witnesses, the indictment becomes a mere idle form, and the accused is deprived of the benefit of a new investigation by the grand jury. It is quite proper that the depositions taken before the magistrate should be submitted to the grand jury, so that they may be fully informed of what the witnesses have testified to, and may detect any variance between the depositions and the oral statements of the witnesses, and it may be, if the witnesses are beyond the jurisdiction of the Court, or have died since their depositions were taken, such proof might be admissible. But we think a fair interpretation of the Act will not justify the conclusion, that the grand jury may refuse to call the witnesses, though within reach of their process, and predicate the indictment solely on the depositions taken before the magistrate. If we are right in this, the District Court erred in refusing to set aside the indictment for this cause.

2d. The Court erred in denying the defendant’s [220] motion to *set aside the panel of the trial jury. No jury had been drawn for the term, as required by law (Statutes of 1852, p. 107). The Act is very specific in prescribing how jurors are to be selected and empaneled; the 16th section provides that, when, from any cause, it shall become necessary during the term, the Court may order the Sheriff to summon, either immediately or for a day fixed, from the citizens of the county, a sufficient number of persons to complete the trial jury, or form a new trial jury, as the case may be. The question is, if no regular jury has been drawn as required by law, whether, under this section, the Court can supply the omission, by causing a jury to be summoned, or whether it is simply intended to cases in which the regular panel has been exhausted, or from some accidental cause, cannot be made available? The latter is our construction of the Act. We insist that, upon a fair construction of all its provisions, it was manifestly intended that the greatest particularity should be observed in selecting the jury, so as to secure the utmost impartiality. The names of fifty persons are to be taken from the assessment roll, by the County Judge, Clerk and Sheriff, and those names are to be placed in a box, and twelve of them drawn out, which shall constitute the trial jury. Notice is to be given one week before the drawing, and a list of the names is to be certified by the County Judge, Clerk and Sheriff. This is the only mode known to the law, by which a jury can be impaneled, unless the Judge has the power, under the 16th section, to cause a jury to be summoned, as was done in this case. That he has such power, when the regular panel has been exhausted, or has been set aside on challenge, cannot be doubted; but if there has been no regular panel — if the County Judge, Clerk and Sheriff have wholly neglected their duty, and have made no effort to impanel a jury, the Court, in our judgment, cannot supply the omission. If it can, the Act prescribing with such minuteness how the jury is to be formed, becomes a mere nullity, to be observed or not, as may suit the convenience or the caprice of the County Judge, Clerk and Sheriff. When the Act prescribes the mode of selecting the jury, it excludes all other modes, and when it says that, if it shall become *necesary [221] “during the term,” the Court may order to be summoned, a sufficient number to complete the trial jury, or form a new trial jury, as the case may be, its phraseology plainly imports that this power is not to be used to supply the place of a regular panel, but only to make up the deficiency, after the regular panel has been exhausted, or set aside for cause. Hence it is a power to be exercised, only during the term, and to complete the trial jury, or to form a new trial jury, after the regular panel has been exhausted, or set aside. It appears to us that this is so palpably the intention of the 16th section, as to leave no room for doubt.' If so, the District Court had no power to empanel the jury, as was done in the case at bar, and ought to have sustained the defendant’s challenge. But if it be conceded that the Court had the power, under the circumstances, to summon a jury, it had no authority to cause twenty-seven names to be placed in a box, and to draw out twelve of these to constitute the panel. The law confers no authority upon the Court to select a jury in that way. The jurors should have been called in the order in which they were summoned, until the requisite number was obtained. For this reason, also, the challenge ought to have been sustained.