There are numerous questions presented by this appeal, all of which have been very thoroughly considered in the foregoing opinion of the Chief Justice; and as I agree with him in the conclusion attained therein, I consider it unnecessary to review all the points made on defendant's behalf, and shall therefore restrict my inquiries to the more material questions wherein I do not fully coincide with our brother Beatty in the reasoning he advances in support of such conclusions, together with some additional authorities bearing upon these questions, arising on the case.
In their consecutive order, the first error assigned is the refusal of the Court below to exclude D. Black from the panel of grand jurors. Upon being interrogated under oath touching his competency as a grand juror in this case, he stated that "he had heard of the charges against defendant, and had an opinion touching the guilt or innocence of defendant." "That he might be required as a witness for the purpose of identifying a piece of the property recovered as belonging to deceased." "That he did not know whether he would be called upon as such witness." "That he was not a prosecutor of defendant, and was taking no interest in his prosecution for the offense." Counsel for the defense thereupon challenged said Black for one of such jury, for this: "first, that he was a witness for the prosecution in reference to the charge against defendant; second, that he *Page 455 had formed and expressed a decided opinion that the defendant was guilty of the said offense for which he had been held to answer." This assignment of error might properly be disposed of here without further inquiry.
The grounds stated by defendant's counsel on this point are not sustained by the record. Black says nothing about a decided opinion, a qualifying word peculiar to this portion of the criminal code, and evidently used in this connection so as to admit of persons on the grand jury who would be excluded under the more rigorous rule applied to trial jurors, whose opinions, formed or expressed, were "unqualified," as prescribed by the statute. The juror merely says that he "had an opinion touching the guilt or innocence of the accused." This alone was no sufficient ground for excluding him from the panel.
Furthermore, I cannot perceive wherein the presence of this juror at the grand inquest could, under any rule, statutory or otherwise, have prejudiced the rights or interests of the accused, as the record before us does not show that he was either a witness before the grand jury or upon the trial at which the conviction was had. And the record is so fully presented to us as to authorize us in believing that he was not a witness before either of the juries. As I have stated, in my judgment this point need not necessarily be pursued farther, but the earnestness and zeal with which counsel has pressed this question upon our attention (and the same remark in phrase yet more complimentary is justly due to that distinguished counsellor in respect to his conduct of the entire case) seem to call for a more extended examination of the questions involved in this point.
The insufficiency of these challenges must be tested by the statute law of the State, irrespective of the rule at common law or by the statutory regulations prevailing elsewhere. Sec. 180 of the Criminal Practice Act as originally adopted in 1861, specified as the only grounds of challenge to an individual grand juror: "first, that he is a minor; second, that he is an alien; third, that he is insane; fourth, that he is a prosecutor upon a charge against the defendant; fifth, that he is a witness on the part of the prosecution and has been served with process — or bound by an undertaking as such; *Page 456 sixth, that he has formed or expressed a decided opinion that the defendant is guilty of the offense for which he is held to answer." This section was amended by Act of the twenty-second of January, 1866, p. 49, (in force at the time this grand jury was empanneled) so as to read as follows: "A challenge to an individual grand juror may be interposed for one or more of the following causes, and for no other: first, that he is a minor; second, that he is an alien; third, that he is insane; fourth, that he is the prosecutor upon a charge or charges against defendant." Thus it will be seen, that the fifth and sixth subdivisions of the section were no longer in force — a fact which counsel for defendant had doubtless overlooked when he framed the objections to the juror Black.
This is inferred from the fact that the objections are stated in verbiage almost verbatim with that contained in the repealed parts of the section. The objection would not have been tenable under the former statute, much less under the Act as amended. The statement was simply that "he had an opinion as to the guilt or innocence of the accused," not that he formed or expressed any decided opinion. Nor did his statement show in the language or meaning of the former Act that he was "a witness on the part of the prosecution who had been served with process or bound by an undertaking as such."
But counsel furthermore insists that "even if a person expects to be a witness for the State," a challenge will lie under the fourth clause of the section, to wit: "the prosecutor upon a charge against the defendant." The form in which Section 180 stood in the original Act shows that a distinction was taken between "the prosecutor" and one who was merely a "witness." They are differently classified: one is definitely spoken of as the prosecutor — the other indefinitely as a witness; and if "prosecutor" was intended to mean "witness," and if no special significance or meaning attached to the word "prosecutor," in the fourth clause of the section, why the need of the fifth clause at all — but more especially why the object of limiting the challenge to such witnesses only "as had been subpœnaed or recognized to appear as such?" Under the section as it originally stood, it would scarcely be contended that a witness could be excluded from the panel *Page 457 on the ground that he was a witness for the prosecution, unless it also appears that "he had been subpœnaed or recognized to appear as such;" therefore, whenever this qualified right of challenge has been withdrawn by the amendment it certainly cannot operate, as would be the effect of the rule urged by counsel, to further extend the rights of defendant, so as to include as grounds of challenge such as were not permitted before this amendment. As the law stood, a witness subpœnaed or held to appear as such, on behalf of the State, or one who had formed or expressed a decided opinion as to the guilt or innocence of a person accused of crime, was held to be disqualified as a grand juror in that particular case; but when these inhibitions were removed, the policy of which it is not our province to determine, we must conclude that the change was made for the express purpose of disallowing a challenge for either of these grounds, and thereafter to confine the privilege of challenge to the causes embraced in the other clauses of the section; any other conclusion is unsupported by the light of reason or authority. I conclude that the juror was not disqualified under the law.
Before leaving this branch of the case, I will further remark that, whilst I have no doubt but that the construction herein given to this section is correct, yet I have encountered some difficulty in determining the proper answer to defendant's counsel, as to the legal understanding of the word "prosecutor," as used in this Act. That is was intended in a different sense from the word "witness," I have already attempted to show; and for the purposes of this case, it is unnecessary, perhaps, to pursue the investigation further. From a somewhat extended range of examination which I have bestowed upon the questions arising here, I conclude this: that under our system of criminal practice, the word is used in a limited and greatly restricted sense. This word is adopted from the statutes of another State, where it is essential to the validity of an indictment that the name of the prosecutor shall be indorsed on the indictment. And such is the law in many of the States; but in every instance so far as I am advised, a marked distinction is taken between the one person known as the "prosecutor" and such as are merely witnesses. For illustration: the law in this particular in *Page 458 Pennsylvania, by the revised Act of 1860, provides that "No person shall be required to answer to any indictment for any offense whatsoever, unless the prosecutor's name, if any there be, is indorsed thereon; and if no person shall avow himself the prosecutor, the Court may hear witnesses, and determine whether there is such a private prosecutor, and if they shall be of opinion that there is such a prosecutor, then direct his name to be indorsed on such indictment." (American Cr. Law, Sec. 480.) In the same State, under an earlier statute, whilst it provided that "No person shall be obliged to answer to any indictment or presentment, unless the prosecutor's name be indorsed thereupon," no provision being made as in the later Act to ascertain who the prosecutor was, it was held "that the Act did not go so far as to require that a prosecutor should be indorsed, in cases where no prosecutor exists." (1 Dallas, 7.) I cite this authority to show that the distinction was constantly preserved between the mere witness and the prosecutor, as we cannot well conceive of an instance of an indictment being found by a grand jury without the presence of witnesses.
Authorities to the same effect as the above are numerous, many of which will be found collated in Vol. 1 Am. Cr. Law, Secs. 496-498. In this State, however, no such requirement obtains; but instead, the indorsement is made by the foreman of the grand jury, and the names of witnesses examined before such a jury are also required to be indorsed on the indictment. Now it may probably occur in many instances in criminal proceedings that in the sense the term is used in our code a witness may also be prosecutor, in which case of course he would be excluded under the fourth subdivision of the section referred to. Also, it may happen that there is a prosecutor who is not a witness, in which case the same rule would apply. It is not my purpose to attempt to show that this word as here used has no peculiar meaning, but the contrary. Inasmuch as this word occurs, I believe, in the one single instance in our Criminal Practice Act, it is quite impossible to lay down a general rule sufficiently comprehensive to cover its full meaning as here used. Probably the views of the Chief Justice on this point are substantially correct.
The second assignment of error is an objection to the *Page 459 trial of panel jurors. This objection was made orally and in general terms, thus: "In drawing and summoning there had been a material departure from the form prescribed by statute in respect to the drawing of said jury." Our statute, in respect to the allowance of challenges in such cases, recognizes a marked distinction that must be observed. "A challenge to an individual juror may be made orally, whether peremptory or for cause, and when peremptory no reason need be given." (Crim. Pr. Act, Secs. 335, 342.) "If the challenge be made to the panel, it must be in writing, specifying plainly and distinctly the facts constituting the grounds of challenge." (Id. Sec. 324.) Possibly the formal part of the law would be sufficiently complied with if the objections were noted on the minutes or records of the Court, so that they could be preserved in an authentic shape; but it is indispensably necessary that facts, and not mere conclusions from facts, be stated. A general statement of the ground of objection, as is the case here, is not enough. The need of this requirement will be apparent on inspection of several succeeding sections, in which provision is made for the trial of a controverted issue, whether of fact or law, arising upon matters set out in the challenge. This point is very fully and ably reviewed in reference to a matter bearing some semblance to this — that of a challenge to a trial juror in Freeman v. People, 4 Denio, 31, per Beardsley, J., and amply supports the conclusions here attained. The challenge was made in the case at bar in general terms. No specific facts were stated upon which an issue of either law or fact could be joined, but simply a general statement, which amounted to nothing more than a legal conclusion. This was clearly insufficient, and the Court very properly overruled the challenge.
Next for our consideration are the exceptions taken to the ruling made in reference to the trial jurors, assigned as the third ground of error, for what is termed in our statute "implied bias," and embraced within the eighth clause of Section 340 of the Criminal Practice Act: "Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged." The diversity shown by the decided cases on the point under consideration led the late Judge Baldwin to remark that *Page 460 "upon no one question of civil or criminal practice have the decisions of Courts been more inharmonious than upon questions of qualifications of jurors arising from the formation or expression of opinion of the guilt or innocence of the accused." (People v. Reynolds,16 Cal. 132.) The state of the law on this point, from the opposing and contradictory character of the decisions, being so uncertain, induced the Legislature of California at its first session to settle, as was supposed, the rule of law by legislative enactment, and which provision we have introduced into our criminal statutes. As before shown, to disqualify on this ground, the opinion or belief formed or expressed must be an unqualified one. This enactment in California was followed by a decision of the Supreme Court (People v. McCauley, 1 Cal. 379) in which the statute was fully upheld and enforced. But in course of time the rule under this statute, as afterwards interpreted by the same Court, became much relaxed; and ultimately not only this decision, but the statute also, was practically nullified, so that when the learned Judge made the statement just quoted, the decisions of that Court on the point in question furnished no exception to other evidences of the undoubted fact. These opposing and contradictory rulings necessarily produced much confusion and embarrassment in the trial of criminal cases, especially those of the highest grade; until finally the Court resolved on a convenient occasion to review the question, and establish a fixed and definite rule, conforming to the evident meaning of the statute. Fortunately this labor was intrusted to one eminently qualified, the result of which was the very fully considered opinion pronounced in the case we have cited from the Sixteenth California Reports. This has been accepted as a correct exposition of the law, and remains, I believe, to the present time unquestioned in their highest Court. Indeed, the principles then enunciated have been applied in a number of cases since then, particularly in ThePeople v. Mahoney, 18 Cal. 180. The facts upon which a challenge was denied in that case are not materially different from this. In my judgment the construction given to this part of the criminal code by these later decisions is the correct one. Applying these principles to the case made by the answers of these jurors, I must hold, with the Chief Justice, that the ruling of the Court was correct in disallowing the challenge. *Page 461
The fourth ground of error is the refusal of the Court below to change the venue. This application is preferred under the provisions of Sections 306 and 308 of the Criminal Practice Act, and is supported by several affidavits. The distinct ground of application is that a fair and impartial trial cannot be had in the county, and which, under the code, "must be granted if the Court be satisfied that the representation of the defendant be true." Counsel lays much stress upon the circumstance that the matters contained in the affidavits, showing why this change should be had, are not refuted by opposing evidence; and he claims that these statements must be accepted as true. Admit this is so: does it necessarily follow that the representation of the defendant that he cannot secure a fair and impartial trial in the county is also true? By no means. The Court must determine the question by all the circumstances surrounding it, and be guided in its judgment, stating the proposition in the form in which counsel presents it, by the exercise of a reasonable and legal discretion. Now the particular facts and circumstances detailed in these affidavits, independent of the representation of defendant as to the trial, might be literally true, and yet from so populous a community as inhabit Storey County a fair and impartial jury be secured for the trial of the accused.
This probably was the conclusion of the Judge, and whilst he was unwilling to embarrass the prosecution by granting a change of venue without an effort to secure a jury within the county, he distinctly notified the defendant's counsel that he might renew the motion if it should afterwards appear difficult to procure such jury. Under the circumstances, it seems to me the Court evinced a proper and considerate regard for the rights of both the prosecution and defense, (for certainly the prosecution has rights as well as the defense, although in practice it often is the case that the rights of the one are lost sight of in the anxious endeavor to screen the guilty from merited punishment) and as it does not appear that the motion was renewed, we may infer that the defense were willing to chance a jury in that county.
A decision in point is contained in People v. Plummer,9 Cal. 298, where on appeal, the lower Court was sustained in its ruling on a similar question. Also, in People v. *Page 462 Mahoney, 18 Cal. 180, an authority cited by defendant's counsel and commented on by the Chief Justice. The last is probably even a stronger case against the defendant, for it will be seen that notwithstanding Mahoney made out a very strong case, the Court overruled the motion, with leave to renew it, which he did do on the same day and again the day after, and each time it was refused. This ruling was sustained on appeal.
Appellate Courts are at all times exceedingly loth to disturb a judgment in a criminal case solely on the ground that the nisiprius Courts have refused a change of venue, and the instances are of rare occurrence where it has been done. For instance, in California, of a large number of appeals going to the Supreme Court, involving this question, I find but a single one, People v. Lee, 5 Cal. 353, where the judgment was reversed on this ground, and even that decision is sharply criticised in the later case of People v. Graham, 21 Cal. 261, and held to be unreliable as authority. I conclude there is no error in the ruling of the Court refusing the change of venue.
The fifth and sixth grounds of error may be considered under one head, as all the exceptions go to the alleged defects in the indictment. The objections taken by counsel on these points may be summed up thus: first, the criminal code requires of an indictment for murder that it shall contain all the essential averments needed at common law; or second, if the code has dispensed with any of the essential averments required at common law, the Act itself is unconstitutional.
Neither of these positions is tenable. The criminal code which in Section 232 has declared "all the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings are to be determined, shall be those which are prescribed by this Act," conveys no words of idle meaning, but is the mandate of the law which Courts should regard and obey. The very full and complete showing by the Chief Justice of the various sections of the code bearing on this question, shows how zealously the law-making power have endeavored to abolish needless "technicalities and subtleties invented as the means of administering justice, and in their stead substituted a system of pleading founded upon *Page 463 the unerring principles of justice, and having for their end the attainment of right without regard to form." It is true there is some conflict in the decisions growing out of these statutory modifications, but wherein they have not given full expression to the spirit and purpose of the code they are but the occasional exhibitions of a "conservatism," as it has been termed, "of a profession which would impede but cannot arrest the progress of a more enlightened understanding of the true principles upon which the science of the law is founded; that would cling with a blind subservience to rules originating in a day of comparative darkness, rather than be guided by the simpler precepts which a reformatory and progressive spirit has inaugurated." These questions must be tested by the statute law, so far as it has pointed out the mode of procedure; and authorities which in effect ignore the distinct and emphatic rules that it has prescribed can serve no purpose in determining our action. "The object of pleading, whether in civil or criminal actions, is to inform the parties of the facts alleged by each against the other with such clearness and distinctness as to enable them to prepare for the trial of disputed facts, or for the application of the law to those which are admitted. Refine as we may upon the mode of effecting this object, the most devoted worshipper of the ancient forms will not deny that this is the only legitimate object of pleading. And in its application to criminal cases, in which no special pleading is required on the part of the defendant by the code (except where a former conviction is pleaded, which must be in a brief, prescribed form) the elements of pleading may be still further condensed into this definition: that it is a statement of a crime imputed to the prisoner, with such a particularity of circumstances only as will enable him to understand the charge and prepare for his defense, and as will authorized the Court, applying the law to the facts charged, to give the appropriate judgment upon conviction." (Report of Code Commission, New York, 1849, p. 141.)
Our criminal code originated with the Code Commissioners of New York. When originally adopted in 1861, it was confessedly a copy of the California Act of May 1, 1851, but this in turn was conceded to be an adaptation of the code reported by the New York Commissioners to the Legislature of that State two years before, but (I believe) not then *Page 464 enacted. I have compared this with the California and Nevada Codes, and discover no difference in respect to any question arising here. The New York Code Commission were lawyers of distinguished repute, and at least upon questions involved in the subject matter of their official duty, their opinions are entitled to great if not controlling weight. Now, in view of the analogies between our code and the one prepared by the New York Commission, it is a significant fact that the form of indictment in the case at bar fully meets the requirements of a form contained in the report of such Commissioners, and intended to supersede the more complex and common law form then held necessary under the revised statutes of 1828. I will not cumber these pages by giving the old form, but quote from their report the form they deem sufficient (of course made applicable to the facts of a particular case) under a code of criminal procedure which I have shown has been adopted substantially here. This form is given as follows:
"Court of Oyer and Terminer, of the County of Columbia. ThePeople of the State of New York against John Jones. John Jones is accused by the Grand Jury of the County of Columbia by this indictment, of the crime of murder committed as follows: The said John Jones, on the first day of January, 1849, at the City of Hudson, in this county, without authority of law, and with malice aforethought, killed William Green by riding over him with a horse."
It has been said that the decisions are conflicting as to matters necessary to be stated in an indictment, yet upon careful examination I think it will be found that, with the exception of the California cases, which I shall presently notice, this conflict is more apparent than real. In probably all of the States, crimes and punishments are defined by statute. In some cases the mode of procedure by indictment is left, as at common law, with the modifications introduced by early English statutes; in fact, that which may be regarded as the American common law. In other States the statutory changes in respect to the form of an indictment preserve the essential qualities required at common law; whilst in a few instances, of which California and Nevada are examples, the modifications introduced by their codes have left but feeble traces of the formality and precision requisite at common law. So that when we say that our *Page 465 statute dividing murder into two degrees is precisely as felonious homicide was by Statute 23, Henry VIII, C.I. Sec. 3, divided into two degrees, (which were afterwards termed murder and manslaughter) or that the Pennsylvania Statute of 1794 is similar to our own in the definition given to murder of the first and second degrees, we shall not fail to notice the differences which were required in indictment and trial of one accused upon such charge under these statutes and our own. These differences are so perceptible as to render the decisions founded upon them of but little value in determining this question under the code prevailing here. The author mainly relied upon by defendant's counsel (Bishop on Criminal Procedure) keeps this distinction constantly in view, and illustrates the texts by numerous references in the accompanying notes to the changes which statutes in different States have introduced in this particular. In California, with a code of criminal procedure as already stated, in all essentials like our own, it is true there is an irreconcilable conflict in the decisions. Counsel cites several cases from the sixth and ninth volumes of these Reports in support of his views, and undoubtedly to the extent of these authorities he is sustained. The later cases of People v. Stevenson, 9 Cal. 273; People v. Dolan, 9 Cal. 576, and People v. Judd, 10 Cal. 313, in part overrule the principles held in 6 Cal. 208 and 236, and9 Cal. 31 and 54; and in The People v. King, 27 Cal. 507, the question is thoroughly and ably considered by the Supreme Court of that State, and in a more recent case, The People v.Cronin, (see Sacramento Union, Nov. 13th, 1867) it reviews the case of The People v. King, before cited, and distinctly reaffirms the rules stated in its decision in the King case, and therefore these latter decisions must be considered as being the settled law under the code in that State, as to the requisites of a good indictment. The principles enunciated in these last two California decisions have direct application to the question at issue here, and in my judgment, enunciate the correct rules of construction to be applied in practice under the code. And it would seem that the reform suggested by the Code Commissioners of New York, and adopted first in the new State of California, and afterwards introduced here, was but the forerunner of a yet more radical change to be introduced into England — the fountain-head of the common *Page 466 law. From a recent publication (the American LawReview for October, 1867) we learn that the form of an indictment for murder now in use there, is as follows:
"Gloucestershire, to wit: The jurors for our Lady the Queen, upon their oath, present that A.B., on the tenth day of July, in the year of our Lord, 1866, feloniously, willfully, and of his malice aforethought, did kill and murder C.D."
Counsel further insists that a constitutional right of defendant's is violated, because the indictment does not conform to the requirement at common law, and founds his objections on a part of Section 8, Article I, of the State Constitution, which provides that no person shall be deprived of life, liberty or property, without due process of law." The same rights are preserved in Article V, of amendments to the Constitution of the United States, which is held to be a restriction of the Government of the United States, and the proceedings of the Federal Courts, and does not apply to the State Governments. But this is of no moment, as we observe the same provision obtains in the State Constitution. It has been universally held, under a like constitutional restriction, that it does not mean "the process" — or otherwise expressed — "the proceeding" shall be the same as pursued at common law, but that the mode and manner of their procedure may be regulated and prescribed by statute. The authority which counsel cites on this point (2 Bishop Crim. Prac., Sec. 585) is not opposed to this principle; for when the author questions such legislation as being unconstitutional "by reason of its being in conflict with provisions written in the Supreme law," he undoubtedly refers to that part of the Massachusetts Constitution called the Declaration of Rights, Part 1, Article 12, wherein is contained the following provisions: "No subject shall be held to answer for any crime or offense, until the same is fully and plainly, substantially and formally described to him."
That such was the sense in which the question is considered by the authority cited, there can be no doubt, for he says: "The Constitution of the States differ, and for the present discussion, it will be sufficient to refer to the Constitution of Massachusetts * * *." If our Constitution was in terms like that of Massachusetts, (in New Hampshire the same language is used in their Constitution) *Page 467 requiring that "a crime or offense shall be fully and plainly, substantially and formally described to him," I apprehend there could be no doubt that the indictment in this case would be insufficient; and indeed that such constitutional requirement could not be met by an indictment which fell much short of the requisites at common law.
The seventh point — the insufficiency of the evidence to warrant the verdict — is suggestive of a very important question, involving a feature of our Constitution, and one upon which Courts have somewhat differed. The jurisdiction of this Court on appeal is limited "in all criminal cases in which the offense charged amounts to felony, to questions of law alone." (Sec. 4, Art. VI, Const.) And the inquiry arises here, to what extent may this Court, and incidentally a District Court, control the verdict of a jury on the ground of an insufficiency of the evidence to justify the verdict. Some authorities hold that in its broadest sense it is a question of law, and the verdict of a jury on these grounds may be set aside; whilst others make a distinction between cases where there is no evidence of a material fact, and where there is some evidence. Greenleaf in his Treatise on Evidence, Volume 1, page 49, says: "Whether there be any evidence or not, is a question for the Judge. Whether it is sufficient evidence is a question for the jury;" and as we gather, more particularly from the point made by the State's Attorney and the dissenting opinion of two Judges of the Court, this distinction was recognized by the Supreme Court of California in the People v. Jones, 31 Cal. 505. This question in the case before us was not argued by counsel, and therefore I am unwilling to pass upon it, as it is not necessary in the ultimate disposition of the appeal, and therefore any question on this point, so far as I am concerned, must be regarded as open for the future ruling of the Court. If the constitutional objection holds good, that we have no license to award a new trial upon the ground that the verdict is unsupported by the evidence, to which conclusion my present impressions lead me, then the judgment should be affirmed.
On the other hand, if it be a question whether there is any evidence or not in respect to any material fact necessary to be established by the prosecution, I can discover no sufficient reasons why the verdict of the jury should be disturbed. *Page 468
The only remaining ground of error assigned by counsel, relates to the charge given the jury by the Court below, and refusing certain instructions asked on behalf of defendant. These questions have been most thoroughly and in my judgment satisfactorily answered in the opinion of the Chief Justice, and concurring with him in both his reasoning and conclusions on the point, I must hold the exceptions not well taken. After a careful and protracted examination of the many questions raised by the defense, and enforced by the arguments of counsel of surpassing zeal, industry and ability, I can in no respect discover wherein any substantial right in the defendant under the law has been violated; wherefore I concur in the opinion of the Chief Justice that the judgment be affirmed, and the Court below appoint a day to carry into execution the sentence already pronounced.