Fellows's case , 5 Me. 333 ( 1828 )

Mellen C. J.

In this case a motion at common law has been filed, and an exception alleged against the- decision of the judge who presided at the trial. The object, on both grounds, is to obtain a new trial. In support of the -motion at common law several reasons have been urged.

1. That Jilván Bolster was not-legally returned as a juror; it not appearing that he was drawn not more than twenty days nor less than six days before the sitting of the court. The return is not dated; but the constable states therein that, he proceeded “ as above directed.” — It was written at the foot of the venire, which contained the legal directions as to the above limitation of time. — The return therefore is good, on the principle, id cerium est quod cerium reddi potest.

2. Because Joab Churchill was not drawn or appointed by the selectmen or a major part of them. It appears by the return that in certifying the name .of the juroi’, the constable says, “ we have appointed,” &c. A similar objection is made against the return of Charles T. Chase, as a juror. — The language is inaccurate, but is perfectly intelligible: by the word “ we,” is meant the town, of which the constable was an inhabitant.

3. Because John L. Eastman, a constable of Fryeburg, was returned as a juror, and made return himself, that he had duly notified the juror. The answer to this objection is that he was a competent juror, even though not compellable to serve; and as the object in view in notifying a juror to attend comt, is to insure bis attendance, if be should attend without being notified, it is equivalent to legal no - tice.

4. That the return on the venire, directed to the constable of the town of Mexico, is imperfect, because the constable did not add to his name the words “ constable of the town of Mexico but only “ constable of the town.” — -They both mean the same thing- — -the objection amounts to nothing.

C». Because Farnum Abbot, one of the jury, had boon a witness against the defendant, on a former trial of this cause. — -A juror may always be a witness for either party, and still retain his seat as juror ; —and a witness may be a legal juror. If prejudiced agaiust the defendant, he might have been objected to at the time of trial; for the fact must have been known to the defendant; the motion admits it ; but it is alleged that it was then forgotten. — On full examination of all these objections, even in this stage of the cause, we are clearly of opinion that they have no legal foundation.

But, according to decided cases, some of which have been cited by the Attorney General, the objections, if they had been good at the time of impanelling the jury, could not now be sustained.

The case of Amherst v. Hadley 1. Pick. 38. is a strong one and in point. There a juror had been drawn more than twenty days before court ; and the fact appeared on the return ; hut it was held to be no reason for a new trial. See the numerous cases there cited. In Jeffries & al. v. Randall 14 Mass. 205. a juryman, disqualified by st atute, sat in the trial; and it does not appear that the fact was known at the time of trial. The court said it was a good cause of challenge ; but no ground for setting aside the verdict. In Walker v. Green. 3. Greenl. 215, the sheriff returned a talesman, Green being then one of his deputies. It was held a good cause of challenge ; but would not support a motion for a new trial.

As to the exception, it certainly cannot for a moment be sustained. The course of proceeding on the part of the court was according to uniform and immemorial usage in Massachusetts, and our own practice since our separation from that Commonwealth; and wc perceive no reason for changing the course, though a different one may have been in use in other States. It is of no consequence whether the question proposed by the clerk to the jury, as to their affirmation of their verdict, be directed to them jointly or separately ; in either case all are called on by way of inquiry, whether, in open court, they consent to the verdict signed, or announced ore tenus, by their foreman. If no one objects, all are considered by their silence as expressing their consent. In the present case, it may also be remarked, that in consequence of the motion or request of the defendant’s counsel, mentioned in the exception, the judge gave a distinct, cautionary direction to the jury, that if any juror was dissatisfied with the verdict, he should express his dissent. The exception is overruled.

The Attorney General, for the State. M. Emery and Fessenden, for the defendant.

We are all of opinion that the verdict must stand, and sentence he awarded against the defendant.