Collier v. State , 2 Stew. 388 ( 1830 )

By JUDGE COLLIER.

The questions, as presented, require an opinion on these points:

1. Should it appear from the indictment, or elsewhere on the record, that the jury summoned on the venire for the term, were chosen as required by statute, by a particular recital of the manner in which they were chosen?

2. Should it appear in totidem verbis, that the grand jury was selected, as the law requires?

3. Can the papers of a cause be taken by the jury in their retirement, if not read to them before?

4. Can a clerk, from whose Court a cause has been removed by change of venue, certify the original papers of the cause, seal them up with a certified copy of the entries in relation to it, and deliver them over to the clerk of the Court to which it is removed, while without his county?

1. No reason suggests itself to us why the indictment, or any other part of the record should discover how the panel of jurors were drawn. It is certainly no part of the appropriate office of; the indictment; and if it be a material part of' the record, we think it sufficiently appears from the venire itself, that the jury was regularly drawn. The part of the venire to which we have reference, after reciting the names of the jurors, proceeded thus: “being good and lawful jurors of your county, duly appointed as the statutes require.” The manner of appointment directed by the statute can be no-other than legal, and we must suppose that they -were so appointed. By so supposing, the plaintiff in error canndt be prejudiced, for if the jury have not been drawn pursuant to law, he may. shew the irregularity to the Court by proof, under an issue adapted to its admissibility.

2. With regard to the second point, it need not appear from any part of the record, that the grand jury was chosen from the panel “ by lot;” any words of an equivalent import are equally good as those employed by the statute. It appears from the record, that the grand jury were “ selected, as the statutes in that case provides.” These words convey to the understanding the idea of being chosen either ( by lot,’ or such other way as the statutes require; and are therefore sufficient for all legal purposes.

If, however, it did not appear that the grand jury were drawn pursuant to law, if the record was silent on this point, we should be disinclined to give to the prisoner any benefit from the exception. If the objection was well founded, he might have availed himself of it by plea in abatement.

3. In -respect to the third point, it is sufficient to say ■that all the records and proceedings of a cause are considered before the jury when it is submitted to them, and whether read or not, are subject to their examination.

4. . On the last point, it is insisted that the law is in favor of the prisoner, because this Court have, where there is a change of venue, directed the original papers, and the entries relative thereto, to be certified and transmitted in a manner different from what they have been in the present case. The rule relied on is the 8th rule for the government of the practice of the Circuit and County Courts, adopted at May term, 1820. So much as is pertinent, is in these words: “ Whenever a change of venue shall be awarded, it shall be the duty of the clerk to subjoin to the original papers belonging to the suit, a transcript of all entries relative to the same, the whole of which being en•closed, under seal, shall be sent by some discreet perón to the clerk of the Court to which the suit shall be removed j &c. ” This rule, it may be remarked, does not require the clerk to certify and seal the papers at any particular place. And if it was competent for him, before its adoption, to do this elsewhere than in the county of which he was clerk, we can discover no reason why he should not be permitted to do so now. In this case, the clerk certifies under his private seal, because he has no official seal. Our reasoning as well our conclusion, is therefore designed for the particular state of fact, leaving the general proposition to be determined when a fit case shall present itself.

In order to make the proper certificates, the clerk should compare his transcript with the minutes of the Court. The original papers are only to be identified with the papers of the cause, and if the clerk is informed as to the correctness of the transcript, and the identity of the papers, he may make a certificate at any place. The case relied on by the plaintiff in error, ^a is not analagous in principle. In that case, a judge, without the State in which he held his office, administered an oath, in regard to some matter within the State. It was held that the administration of the oath was unauthorized, because it was a judicial act. The reason of that case, it must be observed, does not apply to a ministerial act, of which character was the one complained of, and ministerial acts in regard to locality are not controlled in all respects by the same rules which apply to those that are judicial. A judge cannot, when out of the jurisdiction where his duties are to be performed, receive a relinquishment of dower from a feme covert; but he may certify the official character of a clerk of one of his Courts any where. Instead of transmitting the papers and copies of the entries, as expressed in the rule, the clerk might himself have become the bearer, and the respect to which his certificate is entitled as evidence, is not lessened from the circumstance of the solicitor's having had the papers of the cause in his hands before they were certified and delivered by him. By afterwards enveloping and delivering them, he affirmed their genuineness. ' Again, by the plea of “ not guilty,” the prisoner admitted himself legally triable on the papers in the Madison Circuit Court; and if he was not, his objections being extrinsic, should have been urged on motion for a new trial.

Having examined the questions upon the reference, we are °P*n^on that the judgment must be affirmed.

By JUDGE CRENSHAW.

In this case I cannot concur in the judgment now rendered by a majority of the Court, In criminal proceedings, I hold it absolutely essential to extend to the party accused all his rights which he has not expressly waived. No citizen can be legally punished unless he has been prosecuted and convicted in pursuance of a law prescribed, and according to the modes of proceeding, which are legal and constitutional. No feature of our criminal jurisprudence is more sacred than that spirit of tenderness and humanity which pervades the whole system. This is the citadel of safety and protection of our rights and liberties, to which we are to resort in times of tumult and violence, and indeed at all times. If a party is to be infamously punished, his convicfion must be clearly according to law, otherwise his punishment is illegal and oppressive.

In the case before the Court, I dissent from the opinion of a majority of the Judges, because the Judge who tried the case had no evidence from which he could legally know that the bill of indictment on which the party was tried, was indeed the true indictment. Suppose it was lawful for the clerk of Jackson, after he had carried the papers of .the case from his own office to Madison, to certify in Madison county, "that they were the true papers of the case, yet I would ask how could he make such a certificate when the papers had been out of his possession for three days, and when it was imposssible for him certainly to know that they were the true papers, though he might have the strongest belief that they were? To say the least of it, I think it a dangerous practice, and it ought not to be, tolerated in a 'criminal proceeding Furthermore, it was. .at least doubtful whether it was competent for the clerk of Jackson, out of his office, and in another county, to give a certificate^ which was material in-a criminal case. And in ;a criminal proceeding, where the punishment is infamous, I hold that a doubt of the fact or of the law, is tantamount •to an acquittal. For these reasons,-1 am for reversing the judgment, and remanding the case for a trial de novo.

Judgment affirmed-

Judge White not sitting.

a l John. 497.