People v. Roberts
Before: Murray
Synopsis
Though the appointment of a sheriff by a county judge was void, yet the acts of such sheriff, as a de facto officer, are good.
The declaration of a grand juror that he is a naturalized citizen, should be received by the Court as prima facie true, and proof thereof, by actual production of the papers, is unnecessary.
A grand jury must be composed of not less than seventeen, all of whom, however, need not be present at the finding of an indictment, provided that twelve concur in finding the indictment.
Where the prisoner was present at the empanneling of the grand jury, and challenged particular jurors, and his challenge was overruled, and he was indicted for murder, and the cause was transferred for trial to the District Court, it is too late to except to the whole panel. His exceptions should have been urged in the Court of Sessions, The fact that the appointment of a foreman of the grand jury was not entered on the minutes of the Courtis not material, where the indictment is endorsed by the foreman and returned to the Court.
Instructions in civil and criminal trials should be drawn with some slight reference to the case as made by the evidence,
Evidence of character can only be considered in relation to the particular crime charged, in cases where the guilt of the accused is doubtful.
It is the duty and province of the jury to draw the inference of express malice from the facts and circumstances of the case, and the Court properly refused to instruct the jury that there was no evidence of express malice.
The Court may properly refuse instructions, which, though technically correct, have no application to the case as made by the evidence, and might tend to mislead the jury.
The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
The appellant was indicted and convicted of the crime of murder.
The first error assigned is, that the indictment was not found by a lawfully constituted grand jury.
To support this proposition, it is alleged—First: That the sheriff who participated in the drawing of the jury, was appointed by the Judge of the County Court; admitting this, and that such appointment was void, still his acts as a de facto officer were good. This principle is too old to require argument or authority.
Second : It is said that incompetent persons were allowed to sit upon the jury; that it was composed of less than seventeen persons, by reason of the incompetency of one of them, and that less than seventeen concurred in finding the indictment.
In the case of the People v. Freeland, decided at the January term, 1856, the question arose as to the same juror whose competency is now attacked, and it was held that the declaration of a juror that he was a naturalized citizen, should be received by the Court as prima facie true, so as to supersede the necessity of proof by the actual production of his papers. The counsel for the prisoner, however, admitting the principle, seems to think that we did not pass upon the sufficiency of the declaration of the fact as disclosed by the record. It is not our practice in determining a cause, to pursue a synthetical mode of reasoning; the majors include the minors, and when we held that the declaration of naturalization was sufficient evidence, we necessarily determined that such declaration appeared upon the record before us. This necessarily disposes of the objection, that less than seventeen persons composed the grand jury, by reason of one being incompetent, and brings us to the consideration of the question, whether all of the seventeen should be present and deliberate at, or on, the finding of an indictment.
It may be as well in passing, to observe that the fact nowhere appears, that less than seventeen persons were present in the jury room at the time of finding this indictment, notwithstanding a somewhat unwarrantable latitude allowed to the defendant to establish this factj so that [216]the decision of this question might be uncalled for, were it not for the desire which we feel to settle the point, so as to prevent further doubt on the subject, as well as to throw obstacles in the way of frivolous appeals in such cases.
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