Opinion ly
At the October term of the district court for Clinton county, A. D. 1848, Joseph Grable was indicted, and tried for the crime of manslaughter. The jury rendered a verdict of “guilty” and assessed a fine of five hundred dollars to be paid by him
Before final judgment, motions for a new trial, and in arrest of judgment, were made, and overruled by the court. The overruling of the motions for a new trial, and in arrest of judgment, is also assigned for error.
The points of law involved in the instructions, and in the motions for a new trial, and in arrest of judgment, being substantially the same, we will consider them together.
The first error assigned is, that “after the jury had been sworn, and had heard a part of the evidence, one of the jurors was separated from his fellows, and entirely left them.”
The second is, that “the.court permitted the prosecution to withdraw the said juror, who had been separated from his fellows, and swore another juror, in the place of the juror so discharged.”
As these two assignments relate to the same subject matter, in the proceedure of the court below and present the entire transaction in connection, we will consider them together.
The trial by jury, as established by our fundamental law, is justly regarded as a shield to the citizen in the enjoyment of his civil rights. It is secured to every man, that he may be fully and fairly protected from unjust and illegal encroachment upon those rights. Originating in times of tyranny and oppression, where the governed were rendered liable to the loss of life, liberty and property, at the mere will of those who governed, it has come down to ns sanctioned by the approval of the learned, the good and patriotic of many ger.orations, and is adopted by the civilized nations of the earth.
It is now regarded as essential to free government, and is peculiarly adapted to a government founded as ours is; in the sovereign will of the people. A juror is called to
The facts submitted to, and decided by the jury malee up'the case, to which the j udgment of the- law is applied, and by which the rights of the parties are concluded.
So important is this feature of our judicial proceedure, that the courts of our country, have regarded it with the most profound interest, and jealousy.
In criminal proceeding, particularly, the fullest and most extended opportunity is afforded to the accused, for trial by an impartial and unbiased jury.
It has been the constant care of courts to guard the purity of the jury box; and legislatures have provided, by enactment of law, the strictest proceedure for the selection and government of jurors, and the requisites to be observed by courts on the trial in view of the rights involved.
In this state the statute provides that “all issues of fact, joined upon any indictment shall be tried by a jury of the courts where such was found.” This is identical in substance with the provisions of our constitution, applied to indictable offenses. Rev. 8tat. p. 155, § 60. By section 62, the right is given to the accused to challenge peremptorily six jurors, where a felony is charged, the punishment of which is not capital; and it is the privilege of the prosecution to challenge half that number. Thus, have the legislature by express provision, been careful to mark out the duty of the court and guard the rights of parties. It has been- urged here, that the act of the court by dismissing the- juror after he had been sworn, and after he had heard a part of the testimony in the case, on the motion of the prosecutor, where it was not made to appear that he, the juror had conversed with any person on the' subject of .the trial; but had merely sopas ated. from his fellows, was in derogation of the rights of the accused. and that the calling and swearing of another in his stead,
It is contended, that the court erred, in permitting the prosecution to withdraw the juror who had been separated from his fellows, and in calling and swearing another juror in his place, after a part of the evidence in the ease had been heard by the jury as at first constituted.
The bill of exceptions shows, that such was the proceed-ure of the court. This proceeding is complained of by the defendant as an infringement upon his right of challenge. It appears that the defendant stood upon his legal rights, and remained silent during this action of the court.
'"We have already spoken of the rights secured by law to the accused, in a proceeding for a felony. It is his right by the statute, to challenge peremptorily, six jurors. The introduction of the new juror without the consent of the accused, might, if suffered to stand as a precedent, lead to injustice, by procuring such change in the panel, as would result in injustice to him. Having exhausted his chai-
But the case as presented and argued here, is affected by a proceeding still more objectionable than that just noticed. It appears by the bill of exceptions, that a part of the testimony of the prosecution had been beard, by the jury in the forenoon of the day, on winch the trial commenced and when the discharged juror was acting with the jury; that after an adjournment for dinner, in the afternoon, when the defaulting juror had been discharged, a juror was called to act in his stead, and the trial proceeded without recalling the witnesses, who had been heard by the jury, as at first organized. Such being the fact, as presented, that part of the testimony was not heard by the new juror. The law contemplates the hearing of the evidence by each juror for himself. It is the right of the party that it should be so. A full and fair trial by jury could not be otherwise had. A jealous and strict regard for the integrity of the jury as legally established, cannot be dispensed with. The law has carefully provided guards, in order to the protection of the rights of parties. They must be strictly observed. As far as a part of the testimony was concerned, in view of the law, the defendant was found guilty upon the verdict of eleven jurors. This proceeding was, therefore, erroneous. Upon the introduction of the new juror, the evidence should have been commenced and heard anew. The trial should
The other and only assignment of error which we deem it necessary to notice is, that in relation to the right of the court to be in session and to try causes in Clinton county, on the day upon which this trial was had.
It is contended, that by the law fixing the time for holding the district court in Clinton, county, the term ended on Wednesday, and commenced in the adjoining county of Scott, on Thursday of the same,week.. This is true. But in answer to this, the act of the legislature, approved January 22d, 1818, entitled “ An act to change the times of holding courts in the second judicial district,” of this state is replied. By this act, it is provided, that “in the county of Clinton, the time of holding the court, shall be on the second Monday after the fourth Monday in April, and first Monday after the fourth Monday in September. In the county of Scott, on Thursdays following the Mondays for holding the courts in Clinton.” The same act also provides as follows:
“Seo. 3. The judge of said judicial district, (the 2d.,) shall have power to adjourn the courts required to be held at the regular terms above named, and to hold special terms of court in lieu thereof; and to hold special terms of court in any of the counties of said district whenever in his opinion, the public interests may require it; and for a like cause to adjourn the regular term for holding in any one county, and hold a special term of court in lieu thereof, in sny other county of said district.”
“Sec. 4. Whenever a special term of court is held in any county of said district, it shall be in the power and duty of the judge of said district to provide for the trial of criminal,- civil or chancery business, and to order process of all kinds, to be returnable to said special term, and to require or dispense with the necessity of summoning grand and special jurors at such special terms, as in his opinion, the public good may require; and in all such cases the order of the judge calling such special court,
The bill of exceptions shows, that the verdict in the case was rendered by the jury on the Thursday after the Monday on which, by appointment of law, the term commenced in Clinton .county, and the first day of the term for Scott county. That on the Friday following, a motion was made to arrest the judgment, whereupon the judge directed the clerk of the Clinton county court, to make an entry upon the records of the court in said county, as of the this day preceding, “that the district court of Scott county, having been adjourned, this court proceeded with the business in Clinton.”
We think, that the power exercised by the judge of the district court, in this instance, is not warranted by the statute, and might tend to great injustice, by prejudicing the legal rights of suitors. The powers conferred by this special statute are great enough, as expressly given, without extending them by implication still farther, so as to dispense with well established principles of practice, which are essential to a just observance of the rights of parties in court, Citizens are presumed to know the law of the land, and they are required to act, in the adjustment of their business, with a refereiice to its demands. The general law appointing the time and term for holding the court in Clinton county, fixes the time for the commencement of the term, on the second Monday after the fourth Monday in April, and first Monday after the fourth Monday in September, and the term is thereby ended on the Wednesdays succeeding those Mondays in each year; on the Thursdays immediately following the court commences in Scott county.
The act of January 22d, 1848, vests the judge with power to adjourn the courts required to be held at the regular terms above named; and to hold special terms in lieu thereof, to hold special terms in the district, when in his opinion, it becomes necessary for the public interests; and for the like cause, to adjourn the regular term, in any one
The error assigned as to the form of the judgment and sentence thereon, though not in conformity with the law, need not be noticed as the proceedings must be reversed.
Judgment reversed.