In Hawkins's Pleas of the Crown, B. 2, ch. 25, sec. 16, it is said, — "It seems that one who is under a prosecution for any crime whatsoever, may, by the common law, challenge any of the persons returned on the grand jury, — as, being outlawed for felony, c., or villeins, or returned at the instance of a prosecutor, or not returned by the proper officer, c."
In 1 Wharton's Criminal Law, sec. 468, it is said that "irregularities in selecting and empanelling the grand jury, which do not relate to the competency of individual jurors, can in general only be objected to by challenge to the array;" and in section 469, — "When a person who is disqualified is returned, it is a good cause of challenge, which may be made by any person who is concerned in the business to come before the grand jury. The same objection which may be made by challenge to a petit juror may be made to a grand juror. In New York, while it is said to be a good cause of exception to a grand juror that he has formed and expressed an opinion as to the guilt of a party whose case will probably be presented to the consideration of the grand inquest, it is added that such exceptions must be taken before the indictment is found, and will not afterwards be heard."
In State v. Haskell, 6 N.H. 352, an exception, that a juryman upon the panel that tried the case was drawn more than twenty days before the venire was returnable, was overruled as not seasonably taken. The court say, — "The venires are uniformly returned into court, and any party can have access to them and examine the return before his case comes on for trial. If he omits to do this, he must be considered as waiving an exception of this character."
In State v. Rand, 33 N.H. 216, the exception, that one of the grand jurors had, before the meeting of the grand jury by whom the indictment was found, formed and expressed the opinion that the informant was guilty, was overruled as not seasonably taken, it being made to appear that the respondent had knowledge of this before the trial. It hardly admits of a doubt in my mind that if this fact had been known to the respondent before the grand jury was empanelled, it would have been held to be waived if not taken then.
The objection to the venires seems to me to be in fact frivolous, as I cannot conceive of any way in which the respondent could suffer, or the course of justice be hindered, by the want of a seal. It has long been held that the teste is matter of form.
The venires are always returned into court before the empanelling of the jury, and are accessible to the parties and their counsel; and I can see no reason why, if such objections are intended to be taken by persons who are under prosecution, they should not be held to be waived if not taken before the empanelling of the jury, or at least before the finding of the indictment.
The other objection, that certain of the persons drawn as grand jurors were excused on motion of the prosecuting officer, may, I think, be disposed of in the same way. *Page 200
All that was done publicly might and ought to have been known to all parties who had any interest in the constitution of that grand jury, and ought, therefore, to be held to be waived if not taken at the time.
While parties who are under prosecution for crime ought to be allowed every reasonable opportunity to object to everything in the proceeding which can possibly be injurious to their rights, they ought to be held to the exercise of reasonable diligence, and they ought not to be permitted to lie by, keeping back matters of objection, which are or ought to be known to them, to be taken after a failure to make a meritorious defence.
While, therefore, I fully concur with my brother SMITH in regard to the objections, I prefer to put the decision on the ground that the objections were waived by not being seasonably taken, the cases expressly stating that the respondents were under prosecution.
Exceptions overruled.