State v. Hogan , 67 Conn. 581 ( 1896 )

Andrews, C. J.

A challenge to the array of jurors is an objection to the whole panel of jurors at once, and in order to be available it must be for a cause that affects all the jurors alike. 3 Bl. Com. 359 ; 2 Tidd’s Practice, 779. The challenge here was bad on its face, in that it was for a reason which, by its own terms, did not attach to four of the jurors whom it prayed to have rejected. It was necessarily overruled.

But passing this, the challenge was properly denied for the other reason given. The argument by the defendant is that the Act, chapter 189 of the Public Acts of 1896, was repealed by the fifth section of the general jury law passed the same year. That Act, chapter 189, was a special Act having reference only to the Court of Common Pleas in New Haven County. The general jury Act — chapter 219 of the Public Acts of 1895 — was a general Act. The rule is that a special statute is not ordinarily repealed by a later general one. City of Hartford v. Hartford Theological Seminary, 66 Conn., 475.

The testimony as to the conduct of the defendant’s wife, and what she said to the officers, was admissible, and very significant as tending to show that the saloon was being kept open at that time.

The State’s Attorney was in a sense bound to produce the bar-keeper, Baker, as a witness, or to explain his absence. Otherwise he would have been open to the charge of a neglect of duty by the holding back of the very witness who was in the best position to relate the true circumstances of the case. The holding back of evidence may be used as a presumption of fact against the party who holds back such evidence, in all cases when it could be produced. 2 Wharton’s Evidence,. § 1266; Throckmorton v. Chapman, 65 Conn., 441, 454; Kirby v. Tallmadge, 160 U. S., 379.

The comments made by the judge to the jury upon the evidence, were within the discretion of the court.

There is no error.

In this opinion the other judges concurred.