By the Court.
delivering the opinion.
[1.] The grand jury that found the indictment; and the petit jury which was put upon the prisoner at the trial, were summoned by the Sheriff and returned without a venire. The question is, whether the want of the venire is ground for an arrest of the judgment, or for a new trial, motions for both having been made before the Court below and refused. At C. Law the jury is summoned by a venire, and the Sheriff makes return of the writ, with his action under it. (1 Chitty’s Crim. Law, 505 to 509.) Our Statute of 1799 has affirmed the C. Law, and requires the writ and a return thereon. (Cobb’s K. D., 547, 548.) Our opinion, notwithstanding is, that the want of the venire is not such a defect as will vitiate the verdict and arrest the judgment — the trial in other respects, being according to law.
If growing out of the want of a venire, or coupled with that defect, there is any thing going to show that the prisoner has not been tried by an impartial jury boni et legales homines, it would be a ground for a new trial. We are aware that in this opinion we are in conflict with American authority. (The People vs. McKay, 18 John R., 212. The State vs. Dozier, 2 Spear, 211. 1 Richardson, 188.)
These cases are not obligatory; they advise, but do not command: and as to the usage at C. Law, of placing a venire in the hands of the Sheriff, we find that there is sufficient in our statutes to-authorize a departure from that. Judge Spencer, whilst arresting a judgment in the People vs. McKay, because there was a seal wanting to the venire, and therefore no venire, concludes his opinion, as if reluctant to yield common sense to
And the two eases from South Carolina are weakened in their authority by a conflict between them and the principles enunciated by the same Court, in The State vs. Massey, and The State vs. Baldwin, 2 Hill R., 379.
In these eases motions were made for new trials, and in arrest, on the grounds that the jury list had not been made from the Tax returns according to the act of 1799, and that several of the panel were not free-holders, entitled to vote according to the Constitution of South Carolina, as it was in 1799. These grounds were overruled by the Court of Appeals, because not taken before the Circuit Court, yet the Court proceed to give their opinion upon them. It is trae that no question is mooted directly in regard to the necessity of a venire, but Mr. J. O’Neal, and through him, the whole Court, holds that the requirements of the Statute as to the mode in which the juries are made up, and as to their qualifications, are purely directory to public officers in the discharge of their duty; and if they fail to discharge it, it docs not vitiate the array — nor is it any objection to the polls. The act, he further says, was not intended to secure any right, benefit or privilege to the defendant, but was merely to regulate the drawing of the jury in such way as to divide the duty of serving on the jury among the inhabitants of a district — and that he is not prejudiced, if the jury for his trial, are from the vicinage, (the district where the offence was committed) and have all the other legal qualifications. I do not see why the reasoning of this learned Judge does not apply with equal force to the requirement of the Statute, that a venire shall issue to summon the jury. Is that not also directory to public officers in the discharge of their duty ? Was that intended to secure any right, benefit or privilege to the defendant ; and can he complain, if the jury which tries him is from the vicinage, and has the legal qualifications; that they were not empannelled through the formality of a writ ? There
In England, those who are to serve on the grand and petit juries, are ascertained by Law as a class — that is to say, the qualifications of jurors are determined by Law. When a jury is to be convened, the process of venire facias is awarded on the roll, which is a precept directed to the Sheriff, commanding him to cause to come a certain number of subjects, who are by Law entitled to serve as jurors. To compel attendance, upon awarding the venire in the Common Pleas, there issues the Sebeas Corpora and Distringas Juratores ; but in the King’s Bench and Exchequer after the venire, they proceed upon the distringas alone. The names of the jurors are not given in the writ. No authority nominates to him the individuals to bo summoned and returned. He is left to fill out the list himself from that body, from which jurors are, for the term, to be taken. The duty of summoning the jurors is one of some discretion, and great responsibility; therefore, and hence, too, the necessity of a return of the process. When executed, he returns the process with his actings thereon — that return embraces the
By this recital, it is apparent how carefully the Laws of Georgia guard the selection, summons, and empanneling, of both grand and petit juries. And it is to be noticed, that
The juries were regularly drawn, and as drawn recorded.— A list of each jury so drawn and recorded, was handed to the Sheriff; he summoned the jurors named in the lists, and made return thereof; the Indictment was found by the Crand Jury thus drawn, summoned and returned; and the Panel of the Traverse-jury which was put upon the Prisoner, is the list of Petit Jurors drawn, recorded and returned. Is it not clear that every requirement of our Statute, as to the manner in which trial by jury is regulated, so far as the rights of the Prisoner are concerned, was complied with ? Was he in any conceivable degree prejudiced by the omission of the precept? Iff he was not, no legal right was violated. In this case, with the venire, no right or privilege could have been afforded to him, which he did not in fact enjoy. With such securities as our Statutes provide for empanneling juries; greater, far greater than those provided by the C. Law; and all responded to on this trial; with no allegation of bias, prejudice or corruption, it would be a sin against common sense, and a childish adhesion to technicality; reproachful to the Judicature of the State, to
[2.] There being seven capital cases on the Docket at this Term of the Court, in view of that fact, on the first day of the Term, Judge Hill directed the Sheriff to send out into the county, and summon a large number of citizens to be in attendance upon the Court. This act is assigned for error. In the argument, it was denounced as being without warrant in any law of the land, or usage of the Courts; as being unjust to the prisoner, and as evincing an overweening zeal on the part of the Court, to convict. The connection which this cause has with this act of the Court, is simply this, that when the jury came to be made up, talesmen were taken from those citizens thus brought within call of the Court. We see in this act no violation of Law; no anxiety to convict; and no injustice to the defendant: but on the contrary, it was the exercise of a power never before questioned; not calculated to prejudice the prisoner’s case, but eminently calculated to ensure an impartial jury; and was a commendable forecasting provision, for expediting the business of the Court. An act which is entitled to receive, and does receive the unqualified approval of this Court. It was an expedient act in reference to the business of the Court. With a large docket of civil cases, and seven cases for
It was authorized by Law. The power to arrange the order and to provide for the probable necessities of the business of the Court, is incident to all Courts. Summoning these citizens was not an order to bring in talesmen for any particular case; it was an order to bring them within convenient reach of the Court, when it might become necessary to order talesmen. The order was general to summon them to attend, in consequence of the number of capital cases on the docket. Indeed, the Sheriff was instructed not to summon them for any particular case; the command ivas to summon citizens to attend upon the business of the Court. It was argued that this procedure was in violation of law, because it was an order for talesmen in advance of the calling of the cause; the counsel insisting, that by our Statute, the talesmen must be taken from by-standers upon an order to be granted, only when from challenges or otherwise there shall not be a sufficient number of jurors to determine the case. I have already suggested that this was not an order for tales-, men, but only a provision for talesmen, Avhen at the proper time they should be called for. Our act of 1799 provides, that “ when from challenge, or otherwise, there shall not be a sufficient number of jurors to determine any civil or criminal cause, the Court may order the Sheriff, or his deputy, to summon bystanders, or others, qualified as hereinbefore required for the trial of such cause or causes sufficient to complete the panel.” [Oobb’s I)., 548.) At O. Law talcs jurors were taken from the
The course taken by the Court, was calculated to secure an impartial jury. Better, far better, that the citizen shall b'o tried by a jury selected from men brought from their homes— honest, uncommitted, unbought, and unmerchantable men, than by the professional, loafing jurymen who hang about some of our Court-houses — material, to be used, if ever it should happen that prosecutors, or prosecuting officers; or defendants, or defendants’ counsel; or Sheriffs, are to be found so forgetful of every honorable obligation, as to bring them into the jury-box. It concerns the purity of the Criminal Administration, that the Judges of the Superior Courts be sustained in just such a course as that taken by Judge Hill in this cause.
A list of the persons summoned as above stated, was handed to the prisoner when put upon trial, as a list of tales jurors to complete the panel; and objection being made that they-had not been legally summoned, it was withdrawn; and the persons named therein were directed to stand aside. The Sheriff was then directed to bring in talesmen, and twenty of those persons were summoned, and put upon the prisoner. It is objected that these twenty were illegal jurors. What has been already said, disposes of this objection. One ground of objection to them, however, taken by counsel, merits notice. Assuming that the list presented to the prisoner was the tales put upon him, and that upon objection made, were by the Court held disqualified; they say that no one of that list can be afterwards sworn on
Without controverting the legal proposition, we think that it has no application to the facts of this case. The list of names handed to the prisoner, as the summoned tales list, was not adjudged disqualified. The Court made no decision upon the objection stated by the prisoner. Upon its being made, the prosecutor withdrew the list; and thereupon the Court directed thé persons to stand aside, and the summoning and arranging of the panel then proceeded, and the talesmen were brought in from the by-standers; some of them brought there by the previous order of the Court — which order we have already ruled legal. These twenty, therefore, did not occupy the position of jurors challenged and held disqualified. If, indeed, the Court had held as he did not hold, that the objection was valid, to wit: that the bringing of these men there under the order of the first day of the term disqualified them as tales jurors, we would overrule that decision.
[3]. The State relied upon the facts first proven, as making out a clear case of murder — the malice ingredient being implied, as it clearly was reasonably to be implied, from all the circumstances of the killing. The prisoner then put in evidence facts which went to some extent in rebutting the presumption of malice. The State then asked leave to strengthen its case, by proving express malice; and it being granted, the prisoner excepted. Upon what ground, I confess my inability to see.— Surely it is not necessary to discuss this point.
[4.] We are also satisfied that the evidence of the prisoner to prove that the wagon was in fact cut by the deceased, ought to have been admitted. It was an error to exclude it, but we cannot send the cause back on that account, because, having read the whole of the testimony most carefully (amounting to about one hundred manuscript pages) we are perfectly sure, that if the fact had been proven by fifty witnesses, it could not have varied the verdict; and that with that fact in evidence, it would be still as clear a case of murder as any which it has fallen to the lot of this Court to review.
Let the Judgment be affirmed.