State v. Bradley , 48 Conn. 535 ( 1881 )

Carpenter, J.

The defendants were arraigned on a criminal charge. As the jury were about to be impaneled their counsel challenged the array on the ground that the act of 1880, providing a different method of selecting jurors, was unconstitutional; at least, that it was inoperative during the year 1880.

The only ground of challenge to the array at common law is partiality, corruption or fraud, or some defect in making the returns. Swift says (Digest, Yol. 2, p. 429) : “ But our mode of selecting jurors is such that there is no room for any partiality or corruption in the returning officers, so that it would be difficult to imagine any ground for a challenge to the array.” The ground of challenge here is not partiality or fraud in the officers of the law, but the law itself and the power of the legislature are challenged. We know of no precedent for this, and it is doubtful whether it can be done. If it cannot be done, for that reason the challenge was properly disposed of by the Superior Court.

But as it is not desirable to dispose of an important question like this on technical grounds alone we are disposed to treat the challenge as a challenge for cause of each juror and consider the questions discussed on their merits. It is claimed that the statute, notwithstanding its terms providing that it should take effect September 1st, 1880, was inoperative during that year, for the reason that jurors had been selected under the old law for that year and that it was not competent for the legislature to set them aside and select others.

This claim is based on the assumption that jurors are public .officers and cannot in this way be legislated out of .office during the term. We think this assumption is not well founded. Although jurors serve the public and perform important duties in the administration of justice, it does not follow that they are officers within the meaning of the constitution and law. Many persons perform duties of a public nature who are not officers. Witnesses, persons assisting sheriffs and other peace officers, persons in the military service, and the like. While the duties thus performed relate to and promote the public weal, yet the persons per- ' forming them lack some of the more important official elements. A juror -summoned to .attend court has no certain term of office. He may be discharged immediately with or without his consent. He may be excused from serving in any or in all cases at the will of either party, and when the term ends ordinarily his duties as a juror end for the year. The oath administered to him is not that prescribed by the constitution and laws for public officers, but is special, and is usually administered in each case, and has no binding force after the case is disposed of. These considerations serve to illustrate in some measure the difference between jurors and public officers.

But the defendants must go further and insist, not only that a juror in the . discharge of his duty is an officer, but that an elector as soon as his name is in the jury box is also an officer. A very brief consideration of our method of selecting persons to serve as jurors will show the absurdity of this claim.

Out of the large body of citizens liable to be jurors a few are selected whose names are put in the jury boxes of the several towns, and from these persons required to serve from time to time are designated by chance. Whether any person thus selected will be called into actual service or not is uncertain, as many are not drawn at all. The most that can be said of him is that he is liable to be called on, but this liability is not an office. As well might it be said that the liability to have his name put in the jury box is an office. It is hardly carrying the argument one step further, as it is a mere liability in either case, differing only in degree. We are now prepared to say without further argument that the act of 1880, which excused all persons from serving as jurors, whose names were in the jury boxes prior to September 1st of that year, violated no vested rights official or otherwise.

But it is said that the act is unconstitutional because it excludes all persons under thirty years of age from serving as jurors, while the constitution provides that “ every elector shall be eligible to any office, &c.”

What has already been said disposes of this question. But were it otherwise we are clearly of the opinion that the defendants have no cause of complaint so long as the persons who served as jurors were legally qualified. It is no cause for complaint that other persons legally and constitutionally qualified were not permitted to serve.

The claim that the constitution is violated in the tenth section of the act, which provides that no verdict shall be set aside for irregularity in summoning the jury or for want of qualifications, need not be considered, for, as we have seen, there is no irregularity growing out of the alleged defect in the law, and there is no pretense that the jurors who served were disqualified.

The information contains three counts. The defendants demurred and the demurrer was overruled. On the trial the jury were instructed that the first and third counts were insufficient, and their deliberations were confined to the second count. A verdict was rendered against the defendants, and they now claim that the court erred in overruling the demurrer to the second count.

That count alleges the conspiracy, the means contemplated, the acts done, and that the object was accomplished. It is claimed that it charges three offenses, conspiracy, obtaining property by false pretenses and forgery. We do not so understand it. There is no charge in legal and sufficient form of forgery. The instrument alleged to be forged is not set out, nor is it otherwise described with that particularity which the law requires. It is simply stated in general terms “that said Lyon had well and truly executed a certain deed to said Pease of said real estate, which pretended deed the defendants then and there showed and delivered to said Pease as and for a good and sufficient conveyance to him of said last named real estate, but which deed said attorney says was only a false, fraudulent, forged and pretended instrument, and did thereby induce said Pease to execute, etc.” And that, not for the purpose of charging forgery, but for the purpose of showing the means resorted to for the purpose of defrauding Pease. It is one of the overt acts alleged to have been committed in pursuance of the conspiracy. As such it is unobjectionable.

It is not a new thing for conspirators to contemplate a crime as a means to the end sought. In such cases, although the crime intended is actually committed, the conspiracy remains. Whether the parties can be punished for both is another question; they cannot complain if they are legally punished for the conspiracy.

Nor is the count defective for the reason that it sets out the fact that the parties accomplished their object, and thus substantially charges the offense of obtaining money by false pretenses. The information in this respect follows the authorized precedents. 2 Swift’s Digest, 839 et seq.; Wharton’s Precedents of Indictments and Pleas, 613, 614, 615. The English courts held that it was not necessary to allege the overt acts and the consummation of the thing intended; holding it sufficient to allege the conspiracy in general terms. That practice has been followed to some extent in this country, but the more usual course is to allege, as was done in this case, the acts done pursuant to the conspiracy and the result.

The State having rested its case, the defendants offered in evidence a deed of a certain tract of land. The State objected to the deed on the ground that there was no proof of the signature. The defendants then offered B. H. Plato to prove his own signature. On the cross-examination the State’s Attorney asked the following questions: “ Where is the property situated that is described in the deed?” “ What was it, what did it consist of ? ” To both of which the defendants objected, but the court overruled the objection.

If it be conceded that the questions were not strictly cross-interrogatories, we are inclined to think that they were admissible in rebuttal, especially if the answers tended, as they might have done, to show that the deed was inoperative, and that it, was within the discretionary power of the court to allow them on the cross-examination.

The court did not err in refusing to charge as requested by the defendants, that “ the gist of the complaint is the cheating and defrauding by means of the representations and pretenses alleged in the complaint,” and charging that “ the gist of the offense was the conspiracy or agreement to cheat aiid defraud.” What has been said as to the sufficiency of the second count is a sufficient answer to this objection.

The defendants requested the court to charge, that there could he no conviction without some proof of value. The court charged “ that the gist of the complaint being the conspiracy, there could he a conviction without reference to the value of the property sought to be obtained.” We see no objection to this. The property sought to he obtained' was the equity of redemption in certain real estate. Presumptively it had some value. If its apparent value was sufficient to induce the defendants to enter into a conspiracy to obtain it, the jury were justified in finding the criminal intent without proof of' actual value. In this offense (conspiracy to cheat and defraud) the value of the thing sought, provided it be property, is immaterial, except as it may have a bearing upon the question of guilt or innocence.

There is no 'error; and a new trial is denied.

In this opinion the other judges concurred.