People v. Jewett , 3 Wend. 314 ( 1829 )

The following opinions were delivered by the court:

Savage, Ch. J.

It is proper, in the first place, to dispose of the motion to quash the certiorari. This was urged on the ground of its being directed to the oyer and terminer instead of the general sessions of Monroe. When the certiorari was allowed, the indictment was in the sessions ; when it was served, it was in the oyer and terminer, in pursuance of an order previously made by the sessions. Being there, the certiorari operated upon it, and produced the result intended by it, to wit, the removal of the indictment into this court. There is therefore no reason for quashing the writ.

Whilst the indictment remained in the court of sessions, a caption to it was not necessary. Where a certiorari is sued out to remove an indictment into another court, a caption must be affixed to shew the regularity of the finding of the bill. It is the duty of the clerk to affix it, and he is warranted in so doing, whether an entry is or is not made in the minutes of the court of the finding of the bill. If, in truth, a bill was found by a grand jury, brought into court, filed and made a record of the court, it is enough to justify him. An entry was in fact made in this case, and approved by the court of sessions, though made after the closing of the term at which the bill was found. We are not called upon to say whether an entry is necessary ; but if necessary, the due administration of justice may require that it should not be made untq after the person accused has been arrested. In this case it was omitted, at the instance of the public prosecutor, for the very purpose of preventing publicity being given to the transaction, until the defendant should be arrested. If this is a matter resting in discretion, (and we think it is,) all pretext for the charge of irregularity is destroyed.

By the act directing the mode of selecting grand jurors, passed in 1827, (Statutes, vol. 8, p. 312 a,) the duty of making the selection is conferred upon the supervisors of the several counties of the state. They are required to select such men only as they shall know, or have good reason to believe, to be possessed of the necessary property qualification to sit as petit jurors; to be men of approved integrity, of fair character, of sound judgment, and well informed. Thus, the qualifications of the grand jurors are defined by statute, and if those selected possess the required qualifications, there can be no objection to the array. I do not approve of the exclusion by the supervisors of any set of men, on the ground of their belonging to any particular- association or fraternity. A grand jury should be selected with a single eye to the qualifications pointed out by the statute, without enquiry whether the individuals selected do or do not belong to any particular society, sect or denomination, social, benevolent, political or religious. It is represented to us that one of the supervisors of Monroe had stated that the anti-masonic supervisors of that country, or a part of them, in preparing the lists of the grand jurors, had, on the one hand, intentionally and purposely left off the names of individuals for no other reason than that they were members of the masonic fraternity ; and on the other, that they had selected those who were most zealous anti-masons. If a part of the supervisors erred in the discharge of their duty, it is not to be presumed that a majority of them, upon whom the task devolves finally to determine the persons to be selected, fell into the same error. But if they did thus err, the array cannot for that cause be challenged. Whilst those who are selected are unexceptiónable, the fact that others equally unexceptionable are excliided is no cause of challenge of the array. A challenge cari be supported only by shewing that' the persons selected are not qualified according to the requirements of the statute.

As to the right of challenge to the polls. The objection urged against Lacey, the foreman of the jury, is that he, with others, published a pamphlet, in which it is stated that the defendant, when called upon as a witness in reference to the abduction of Morgan, had refused to testify, alleging that he could not do so truly without criminating himself; and concludes with strictures on the conduct of the defendant, shewing the estimation in which t,he juror held the defendant on the subject of the charge against him. It is not perceived how this could disqualify the juror from serving on the inquest, or finding a bill against the defendant. The fact stated by the juror is not denied by the defendant, nor is it intimated that the charge was made from prejudice or hostility. As to Wood, the other juror, good cause of challenge existed. There are causes of challenge to grand jurors, and these may be urged by those accused, whether in prison or out on recognizance; and it is even said that a person wholly disinterested may, as amicus curia, suggest that a grand juror is disqualified. But such objection, to be availing, must be made previous to the juror being empannelled and sworn. It has been urged upon us that the defendant not having been apprised of any intended proceeding against him, not having been arrested on a criminal charge, or required to enter into recognizance to appear at the court where the bill of indictment was found, had not an opportunity to make his challenge ; that now is his earliest day in court, and that he ought therefore to be permitted to avail himself of this defence. Although the force of this appeal is felt, I cannot yield to it, and consent that after an indictment found the party charged may urge an objection of this kind in avoidance of the indictment. The books are silent on the subject of such exception after indictment found, and in the absence of authority, I am inclined to say, in consideration of the inconvenience and delay which would unavoidably ensue in the administration of criminal justice, was a challenge to a grand juror permitted to be made after he has sworn and empanBelled, that the objection comes too late. I am therefore of opinion that on neither of the grounds urged by the defendant ought this motion to be granted.