Opinion Toy
Alexander Trimble was indicted at the September term of the district court at Keokuk, in. Lee county, A. D. 1849, for tbe murder of Bich-ará "Wells. He was found guilty of manslaughter by the
The following are the principle assignments of error, which are relied on as ground of reversal:
1. The court erred in overruling the prisoner’s challenges to the array of grand and petit jurors who found the indictment, and tried the causethe venue for summoning both, being illegal.
2. The court erred in not allowing defendant’s challenges for cause of jurors, who had each formed and expressed an opinion as to the guilt or innocence of the prisoner.
The first assignment involves the question of legal validity as to selection, summoning and qualifications of the jurors, grand and petit.
The objection involves the constitutionality of the proceeding as’ conflicting with the organization of the counties of the state for judicial purposes. In order to the proper disposition of this question, we will refer to the provisions of the constitntion,N-and the acts of the legislature affecting the subject under consideration.
The act of January 24th, 1848, entitled “An act fixing the times and places of holding the district courts in the first judicial district,” enacts that the times and places of holding the court, shall be, “In the county of Lee, at Fort
Sec. 2d. provides, that “the said district courts in the county of Lee, shall have concurrent jurisdiction in all civil causes in said county, except appeals from justices of the poace in the city of Keokuk, and in the townships of Jacksou, Des Moines and Montrose.”
Sec. 3d., that the district court at the city of Keokuk, shall have exclusive jurisdiction in all criminal causes, and in all appeals in civil causes from justices of the peace in the said city of Keokuk, and in the townships of Jackson, Des Moines and Montrose in said county of Lee.”
Provision is then made by the act, by which, jurisdiction in all civil and criminal matters, as by law allowable, (except those arising in the city of Keokuk, Jackson, Des Moines and Montrose townships,) within the county of Lee, is conferred upon the district court to be holden at Fort Madison. The sheriff and clerk of the district court of the county, are required to have offices at both places; and the former acts of the legislature fixing the times and places for holding the district court in Lee county are repealed. The effect of this enactment is to establish the city of Keokuk as a place for the holding of the district court in Lee county, for the transaction of judicial business within the city and the three townships named, in accordance with the terms therein specified.
It is contended by the defendant’s counsel, that the ve-nire for the summoning of the grand and petit jurors, requiring them to be taken from the city of Keokuk and the townships of Jackson, Des Moines and Montrose and not from the body of the whole county of Lee is defective in law, and in derogation of the right of the prisoner.
The right of the legislature to divide the county for judicial purposes, is denied. The judicial power of the state
It is clearly the province of the legislature, as it is their duty, to provide for the municipal convenience and welfare of the counties of the state in judicial policy. Public economy, as well as private interests, in view of the increase of population and business, may justly require change, productive of easement to the community. Judicial or other governmental arrangement adapted to the condition of a new state, when population is sparse and bus-' iness transactions are few, "and unimportant, may after a lapse of time, and increase and improvement, prove inad-quate to the wants of the public. When such is the case, it is proper, indeed it becomes necessary, that the law should be changed to answer the demands of popular advancement. To effect this? the legislative power may be invoked and exercised. This power is limited, and in a measure regulated by the constitution of the state. The municipal affairs of the state are to be regulated by the common law, which remains unchanged by .legislative enactment, when exercised without violation of the constitution. The law in question, is confined in its operation to Lee county, and is so far local. Then how does this act of the legislature establishing the two courts, and dividing Lee county for judicial purposes stand, in view of the constitution, in its effect upon the rights of the accused.
- The constitution of this state provides, “That the right of trial by jury, shall remain inviolate.” It secures to the accused, a speedy trial by an impartial jury. That he shall be informed of the accusation against him, &c. By section 11th of the bill of rights, it is declared, that “noper-son shall be held to answer for a criminal offense, unless
The 2d section, of the 12th article of the constitution is cited as restricting the legislature, so as to invalidate the act establishing the court at "Keokuk. By this section, it is declared, that “no new county shall be laid off hereafter, nor old county reduced to less contents, than four -hundred and thirty two square miles.” We cannot see how this section of the constitution can, by any reasonable construction, be made to apply to the point here raised. Lee county is one of the oldest counties in the state, organized before the constitution was adopted, and is the largest and most populous. The act in question, does not reduce, or in any way change it territorially. Its square miles in number are as they were before this act was passed. The act only affects the internal and municipal organization and interests of the county. This the legislature had the power to regulate, upon the request of the inhabitants, under the restriction heretofore designated.
The townships of Jackson, Bes Moines and Montrose, are within the county of Lee, and the jurors having been selected from them, ‘were taken as required by law, from the body of that county and not of another. “The body of the county,” is to be considered as expressing the county limit, so as to prevent the selection of jurors residing without the county. We do not understand that the law requires jurors to be taken from every and all portions of the county. If so, by what rule are the fractions or subdivisions of the county for this purpose designated? The three townships which are set apart for judicial purposes in establishing the court at the city of Keokuk, contain a population amply sufficient for the procurement of a pro--_per number of “ good and lawful men,” to constitixte juries for the trial of criminal and civil causes. If by reason of great excitement or otherwise, prejudice should exist
By this act, all previous enactments passed for establishing the times and places of holding the district court of Lee county, are expressly repealed in the seventh section, and all acts providing for the judicial organization of that county with which the act conflicts, are also repealed by operation of law. This is not, therefore, an interference with any rights secured to the accused by the provisions of the constitution. There is no constitutional provision, which prohibits the establishment of the additional time and place for holding the district court in and for Lee county. The decision of the district court in this matter was therefore correct.
But it is contended for the accused, that the court erred in not allowing his challenge for cause to jurors, who had formed and expressed an opinion.
The bill of exceptions shows, that on proceeding to trial several jurors were called to the box, who being sworn to answer questions touching their qualifications as jurors, answered that they had formed a/nd expressed an opinion as to the guilt or innocence of the prisoner, whereupon the prosecuting attorney having refused to challenge them, they were challenged for cause by the prisoner’s counsel, and requested to leave the box. Whereupon,the court interposed, saying that it was improper to malte challenges in that way, and ordered the clerk to call the jurors singly, which being done, Peyton Dawson, one of the jurors called, stated “that he had formed and expressed an opinion from the rumor or report he had heard in his neighborhood, soon after the murder was committed; that he had no acquaintance with the defendant, no ill will or prejudice against him; that he had no personal knowledge of the circumstances of the case; that he had never heard any of the testimony or conversed with any of the witnesses; that his opinion was conditional; that if what he had heard was true, he had formed an opinion; if what he had heard
To this action of the court, the counsel for the prisoner excepted.
The right of the accused “to a speedy trial by an impartial jury,” is secured by the constitution. It is therefore, important in this case, to ascertain from the record, whether the jurors to whom the prisoner objected, were “impartial” in the proper legal sense. By examining the origin of the trial by jury, and tracing its history through the progression of civil and political advancement, to the enlightened spirit which pervades civilization, at the present day, we find that reason directed by truth, has done much to render it a shield to the citizen against tyranny and oppression; whilst by it, the observance of law and justice are enforced. It has kept pace with the progression of political liberty. In-England, during the reigns of James I. and Queen Anne, it was questioned whether an offender charged with a capital felony, was entitled to examine witnesses on oath in his favor. In the 7th year of the reign of William III., witnesses were first allowed to prisoners on trials in certain cases. In the first year of Queen Anne; the right was extended to all cases of treason and felony. 4 Black. Com., 360.
Counsel was not allowed to the prisoner in case of high treason till the seventh of William III. It is a feature of English jurisprudence now, that where a man is indicted for a capital felony, he is not allowed counsel on the question of guilty or not guilty. But strange as these facts may seem to us in the United States at this day, they are .scarcely more so, when properly considered, than that at this period of the world, the English judiciary should declare, that a juror who had formed and expressed an opin
In disposing of the question before us we will then be governed by the light of American decisions, which best accord with the spirit of our constitution. Then, is it good cause for a principal challenge to a juror, in a capital case, that he has formed and expressed an opinion as to the guilt or innocence of a prisoner on trial, when that opinion has been formed on facts gathered from rumor, and believed by him so as to bring his mind to a conclusion on the subject? In the case of The People v. Vermelyea 7 Cowen, 121, the learned judge who delivered the opinion of the court says: “It is admitted that every citizen whether arraigned for crime or impleaded in a civil action is entitled to a trial by a fair and impartial jury. The trial by jury is justly considered an invaluable privilege, but it would become a mockery if persons who had prejudged the case, were admitted as impartial triers. All the elementary writers with the exception of Chitty lay down the proposition broadly, that if a juror has declared his opinion beforehand, it is a good cause of challenge. 1st Archbold, 181, 182. 2d Tidd, 779, 780. Bacon, (title juries E.) 5. Bull, N. P. 307. Lord Coke (1 Com. on Lit. 155, 156) says : “he ought to be least suspicious ; that is to be indifferent as he stands unsworn and then he is accounted in law liber et legcdis homo: other -
The courts have in this country decided that a juror who had tried a cause once would be incompetent to act as such upon a second trial. 1. G. Greene. 534.
Upon a review of the various decisions upon this and assimilated points, we hold it to be a good ground of challenge for cause to a juror, that he has formed and expressed an opinion on the question in controversy, between the parties to a suit. In cases capitally criminal, this principle should be the more strictly observed. Blake v. Millspaugh, 1 John. 316; Pringle v. Hughes, 1 Cowen 432; Commonwealth v. Knapp, 9 Pick. 499; The People v. Rathbun, 21 Wend. 542; The Commonwealth v. Ruggell, 16 Pick. 153; The People v. Bodine, 1 Denio 281.
Much reliance is placed on the fact, that the juror after stating that he had formed and expressed an opinion, upon being examined further by the court added, “that if what he had heard was true, he had formed an opinion; if what he had heard was not true, he had formed none.” It is urged that his opinion was merely hypothetical; and this being the fact, that he stood indifferent. We are aware that decisions to this effect have been made, by courts entitled to high respect. But none of these cases will meet the one at bar. Here the juror had expressed a positive opinion. It does not appear to have been hypothetically expressed. That expression must have been based upon an opinion previously formed. This explanation merely amounts to a qualification, which all will admit, who have formed opinions upon what they have heard; that is if what they have heard should not prove true, their opinions kmight be changed. The juror who has previously formed and expressed an opinion, upon the merits of a case, cannot, when he enters the bos,,stand there indifferent, though that opinion be condition&kqr hypothetical. It is clear, that the task of removing his mental bias must devolve upon the party against whom it exists. lie is not free and
The allegation of inconvenience to judicial proceedure, in the procurement of jurors in cases like this, where the< public mind becomes excited, insomuch, that the minds of citizens are liable to be affected by rumor, cannot be received as a reason for dispensing with the observance of a right secured, and made sacred by the constitution, and which is of vital importance to the citizen. They who are in this day of civil and religious light and liberty, called to make and execute the law, should not turn back to minister to the improprieties of mankind, but rather to hold the standard of the constitution and the law, up to its true elevation, that the citizen may see it and be raised to it.
If difficulty should occur in the procurement of jurors, who will stand on the trial indifferent or impartial, the law has wisely provided for such a case, by allowing a change of venue.
Judgment reversed.