Dissenting.—We have two statutes prescribing the manner of selecting grand jurors, both bearing the same date. See laws of 1838-9 page's 112 and 278. The first requires the county commissioners to make out and deliver to the clerk of the District Court a list of twenty-three persons selected as grand jurors. The other directs that an attested copy of the names selected should be delivered in like manner. The forrner of these statutes seems to have been literally complied with, the latter not. Was the indictment thereby invalidated?
Where two statutes are simultaneously enacted, refering to the same subject, covering the same ground, and both merely directory, it seems by means perfectly clear to me that a compliance with either is not all that is requsite. But the present case is stronger than the proposition just laid down. It is the general act regulating criminal proceedings which only requires a "list” of the grand jury to be furnished to th clerk of the District Court. This appears to have been strictly com plied with. The act then proceeds to provide for all the other steps t< be taken, up to the final conviction and sentence. Where these step have been accurately pursued, will the punishment be illegal because ii another statute passed at the same time and only of equal authority, a similar mode of proceeding but differing slightly in detail, has beer pointed out? The proceedings authorized by the staute have the foundation which the same statute requires. The basis is sufficient for the superstructure.
*193But my opinion does not rest upon that position. Admitting the statute which directs an “ attested copy” to be filed, to be of paramount authority, does it follow that every deviation from the mode therein pointed out will vitiate the indictment? To fail to comply strictly with the statute is one thing, to deviate so far as to render all the proceedings invalid is another and a very different matter.
For example—the judge is required to give certain statutes in charge to every grand jury. If he should neglect to do so, could that fact be succesfully pleaded in abatement to all the indictments found by that jury? I believe it to be a sound rule that a deviation from a directory statute cannot be taken advantage of by a defendant, without there is a probability that he may have been thereby substantially prejudiced. (On this point also, see Laws of 1839, page 120, s. 93.) Thus, the justices’ act provides that a summons should issue at least seven and be served five days before the return day, thereby giving the constable two days in which to make the service and the defendant five days thereafter to prepare for his appearance and defence. Suppose the summons to be issued only six days, but served full five days before the return day, can the defendant successfully object to the process on account of sufficient time not having been given to the constable in which to make service ? The officer would in such case be guilty of no neglect of duty if he should fail to serve the process in due time, but the defendant would have no right to complain. Where a provision of this kind is made exclusively for the benefit of an officer of the court, it seems to me that he is the only one to object to a non-compliance therewith.
In the case at bar the county commissioners were required to furnish the clerk of the District Court with an “ attested copy,” of the names of the grand jurors by them selected. What was the object of this reqirement? Evidently to give that clerk authentic information of the names he was to insert in the venire. Without such an “ attested copy ” he would not be obliged to issue a venire at all. If, however, he should do so upon other satisfactory information, inserting therein the precise names of the individuals selected by the county commissioners, would they not when duly impannelled and sworn, be a competent grandfjüry ? Would any indictment they should present be invalid because the clerk of the board of commissioners had failed to attach his seal to the list filed with the clerk of the District Court? Especially when, as in the present case, these two clerkships were held by the same individual and the only defect was that he had failed to make out this list as clerk of the commissioners, and certify it under seal to himself as clerk of the *194District Court. Can any possible prejudice result to the defendant in consequence of such omission ?
It is true the law entertains objections in criminal proceedings, which would not be tolorated in civil eases, but this rule it seems to me should be limited to matters essential to a fair defence on the merits. It see no reason why the penal law should create needless opportunities for guilt to escape detection and punishment—why a defect'of mere form, affording no test of guilt or innocence, should be any more available to a defendant in a criminal than in a civil case.
In fact, reasoning from principle, I should suppose a contrary rule would be far more defensible. A strict enforcement of the criminal code is of far more importance to the well being of society, than that of the civil. To give guilt an unnecessary means of escape is much more reprehensible and pernicious than to introduce defects in the laws for the enforcement of contracts. Every opportunity to escape on mere technical grounds is needlessly paralizing pro tanto, the arm of the law; voluntarily diminishing the certainty with which punishment foiiows transgression and thus negatively at least, inviting the commission of offences. I would say then, give the accused every reasonable opportunity to enable him to vindicate his innocence, be liberally indulgent to his objections, to whatever might have a tendency to convict him unjustly, but never, unless from necessity, open an aperture through which guilt and innocence may alike escape with impunity.
I know a somewhat different rule was early adopted in the English courts and has been followed with rather a blind acquiescence in most of the States of the Union. That rule originated when the laws of England were written in blood, and was the result of the humanity of her judiciary. Struggling to weaken or evade the sanguinary edicts of tyrants. The judges had no power to annul or even to mitigate the Jaw which affixed death as the penalty for many of the minor offences, but '.hey could and did give the accused the benefit of delay, and even-of ultimate escape, by sustaining objections to indictments for formal and trivial defects. If they could not modify the severity of punishments too severe humanity, prompted them to diminish their certainty.
With us the case is very different. Following the dictates of humanity and sound policy, we have gone far to revolutionize the penal code of our ancestors. Our legislators recognize the maxim that certainty of punishment is better than severity. Under these circumstances it seems to me the courts should do all they justly can to render punishment the inevitable consequence of transgression. Instead of blindly *195adopting rules dictated by humanity, under circumstances so totally different, we should apply the principles of reason to our own laws and present situation. See the case of The United States vs. Dollarhide, decided at this term of the court. I therefore, respectfully dissent from the opinion of the court in the present case.