State v. Moore , 69 N.H. 102 ( 1896 )

At the argument but two exceptions were insisted upon in the defendant's behalf: first, to the order adjourning his trial to Nashua without proper notice; and second, to the order issuing venires to jurors from certain towns only in the county. Neither requires other than brief consideration.

Whether it might properly be held, under the circumstances detailed in the case, that the first exception is not open to the defendant, has not been considered because there is a broader and a more satisfactory ground upon which the exception must be overruled.

The adjournment was had by virtue of an amendment, so called, to s. 3, c. 207, P.S., contained in c. 56, Laws 1895, which provides that "When in the opinion of the court the public good will be promoted thereby, it may adjourn to another place the county for one or more days, as may be necessary, for the arraignment and trial of prisoners or trial of civil causes." Prior to this amendment, the statutory power of the court to adjourn to another place in the county was limited to an adjournment of the term as a whole (P.S., c. 207, s. 3), and this could be done only by an order of notice published in some newspaper (Ib., s. 4) "three weeks successively, and the last publication one week, at least, before the day or thing of which notice is given." P.S., c. 2, s. 32.

The lack of such notification is the defendant's sole ground of complaint. It is not denied that he had actual and seasonable notice of the adjournment, and no claim is made that he was in any way prejudiced or injured because the provisions of s. 4 as to publication were not complied with. At most, therefore, the objection is a technical one purely. But, even as such, it has no merit, for we are clearly of opinion, upon the reasons given and the authorities cited by the state's counsel, that no newspaper publication of an adjournment under the amendment of 1895 is necessary, as against parties having actual and seasonable notice. It would not only be a useless ceremony, which the law of this jurisdiction never requires, but it would practically be subversive of the undoubted objects sought to be attained by the legislature in the enactment of the amendment, which were to facilitate the business of the term, to subserve the interests of parties, to secure fairness of trial when imperiled by local prejudice or other cause, and to promote the public good. It is unnecessary to go farther, but it may properly be added that even if the term itself had been adjourned to Nashua without such publication, it is not perceived on what ground the defendant would be entitled to complain. The only object of s. 4 manifestly is to give reasonable notice of the change of place to all persons having business in court. This the defendant had, and no damage to him having resulted through the omission of publication, we are not aware of any legal principle which would enable him to object that other parties and the public generally were not notified.

The second exception rests entirely upon the alleged unconstitutionality of s. 7, c. 209, P.S., which enacts that "The court shall direct the number of jurors to be summoned, and from what towns," etc.

While other satisfactory answers to this contention are not wanting, it is only necessary to say that, practically and in effect, such has been the law since 1758. Prov. Laws, ed. 1771, pp. 189, 190, s. 2; Act of June 17, 1785 (Laws, ed. 1789, pp. 43, 44; ed. 1805, p. 107; ed. 1815, p. 122); Act of July 4, 1827, s. 11 (Laws, ed. 1830, p. 468, s. 11); R.S., c. 176, s. 5; C.S., c. 186, s. 6; G.S., c. 194, s. 6; G.L., c. 213, s. 6. In view of this fact, there remains no room for doubt or disputation that when our constitution was adopted the right of trial in use here was the right to be tried by impartial jurors drawn from such towns in the county as the court directed; and if this be so, the defendant has no valid ground of complaint upon this branch of the case. East Kingston v. Towle, 48 N.H. 57, 64; Copp v. Henniker, 55 N.H. 179, 193; State v. Almy, 67 N.H. 274.

Nor has he upon any branch of it. In any aspect consistent with legal principles, neither his exception to the denial of his request for additional instructions to the jury, nor any of his other exceptions (all of which have been sufficiently answered in the brief for the state), can avail him. He has had his full day in court; he has been heard at length by his counsel and by his witnesses, and might have been heard by himself; he has been tried by a jury "as impartial as the lot of humanity will admit," drawn from the body of the county (State v. Sawtelle, 66 N.H. 488,505-507), in accordance with the law as well as with the uniform and heretofore unchallenged practice of nearly one hundred and fifty years; he has been given the benefit of quite sufficiently favorable instructions for their guidance and his protection; he has been denied none of the safeguards, either constitutional or statutory, which attach to persons in his situation; and we are constrained to hold that, in all respects, his conviction has been "conformably to the laws."

Exceptions overruled.

PIKE, J., did not sit: the others concurred.