State v. Mercier , 98 Vt. 368 ( 1925 )

This respondent, who was convicted in the Burlington city court of the illegal possession of intoxicating liquor, says that his conviction should be set aside because he was denied the full benefit of his constitutional right to a trial by jury.

While the right to a trial before an impartial jury is guaranteed by the organic law (Const. Vt. Ch. I, Art. 10), and while this right is to be held sacred, (Ibid, Art. 12), and is to be given effect according to the course of the common law(Plimpton v. Somerset, 33 Vt. 283), it does not follow that no change in the procedural requirements by which the enjoyment of this right is secured can be made without impairing the right. The term "sacred" as used in the Constitution means no more than the word "inviolate," which is found in the fundamental law of some of the states. It does not mean that the mode of listing and selecting the jurors shall forever remain unchanged. Clayton v.Clark, 55 N.J. Law, 539, 26 A. 795; People v. Peete, 54 Cal. App. 333, 202 P. 51. It only means that the right itself shall be free from destruction or material impairment. Humphrey v.Eakeley, 72 N.J. Law, 424, 60 A. 1097, 5 Ann. Cas. 929; State v. DeLorenzo, 81 N.J. Law, 613, 79 A. 839, Ann. Cas. 1912D, 329.

Hence it is, that the Legislature has full authority to make reasonable laws regulating the mode in which the right shall be enjoyed, provided it does not materially impair the right itself.In re Marron, 60 Vt. 199, 12 A. 523.

The jury by which this respondent was found guilty consisted of twelve men selected and drawn in conformity to the provision of the statute, G.L. 1652. It is therein provided that the sheriff, a deputy sheriff, or other officer appointed by the court, shall select from the list of three hundred judicious men which the judge is required by G.L. 1651 to keep on file, the names of twenty-four persons from the towns designated by the judge; write each name on a separate slip of paper, and deposit the same in a proper receptacle. The judge or clerk is then to draw the names therefrom, one at a time, and the person whose name is so drawn, unless challenged, shall be a juror. Each party is given six peremptory challenges and the right to an unlimited number of challenges for cause.

The respondent insists that this method of securing the jury gives the officer too wide a latitude in selecting the names, and cites State v. Peterson, 41 Vt. 504, to sustain him. It is true that in that case Judge Wilson, arguendo, indulges in some animadversions on the method of drawing jurors in justice courts. They were wholly outside the necessities of the case. It was enough for the decision to hold that the respondent was entitled to a jury of twelve men. The criticism, then, was entirelyobiter; and it is apparent that it was not taken very seriously, for, so far as the criticism went, we have gone on for the more than fifty years that have since elapsed, drawing juries in justice courts in exactly the same way. G.L. 1686.

The statute above referred to was recently before us in State v. Pilver, 91 Vt. 310, 100 A. 674, and we therein discussed questions somewhat cognate to the one here presented, and that case may be profitably considered in this connection.

But the respondent says that the statute gave him no adequate opportunity to exercise his right of challenge, which, he insists, is an essential element of his right to a jury trial. That a respondent must be accorded such an opportunity is undoubted. Without it, he is not given the full benefit of his constitutional right. A liberal, though not unlimited opportunity to examine the jurors drawn (State v. Bosworth, 86 Vt. 71, 83 A. 657), to test and consider their respective qualifications, to assert and exercise the right of challenge given him by the statute, is, no doubt, essential to the full enjoyment of a respondent's right to a jury trial. But there is nothing in the statute under consideration that expressly or by implication denies such an opportunity; nor does the record show that the proceedings below were so conducted as to deprive this respondent of it. Indulging the presumption of regularity, as we must, it is to be taken that he was accorded it.

The respondent's brief indicates that it may have been ruled below that the right of challenge was to be exercised at the very time a juror's name was drawn. Though the record does not show that this was so, we take occasion to say that such a construction of the statute would be quite too narrow and wholly unwarranted.

The other questions presented can be quickly disposed of. The evidence tended to show that a small quantity of liquid was found in certain gallon cans which were discovered when the respondent's premises were searched under a warrant. Witnesses testified that this liquid smelled like alcohol and appeared to be alcohol. The jurors were allowed to smell of the cans. This evidence fairly and reasonably tended to show that the liquid recovered from the cans was, in fact, alcohol (State v. O'Grady,65 Vt. 66, 25 A. 905; Haines v. Hanrahan, 105 Mass. 480), and warranted the inference that the cans had been used to keep alcohol in. State v. O'Grady, supra; State v. Krinski, 78 Vt. 162, 62 A. 37; State v. Suiter, 78 Vt. 391, 63 A. 182; State v. Legendre, 89 Vt. 526, 96 A. 9.

If the liquid was alcohol, it was wholly unnecessary to give evidence that its alcoholic content exceeded the limit fixed by G.L. 6452. Alcohol is, itself, the intoxicating principle of all intoxicating liquors. This is a matter of common knowledge of which courts take judicial notice. Snider v. State, 81 Ga. 753, 7 S.E. 631, 12 A.S.R. 350. Being the standard by which the quality of other liquors is tested, no proof of its quality is required. Its strength, to be sure, varies somewhat according to the degree of perfection of its distillation, but so long as it is alcohol, it necessarily contains a great many times the prohibited percentage of itself. Any liquid that did not contain such an amount of alcohol, could not be alcohol. Of this self-evident fact, courts require no proof. See Albert v. UnitedStates (C.C.A.) 281 Fed. 511, wherein it is held that judicial notice will be taken of the fact that whiskey contains many times one-half of one per cent. of alcohol.

The only evidence in defense was the testimony of the respondent's son, a boy thirteen years of age, who said that he found the cans on the city dump, and that he carried them home with the intention of selling them at a certain paint shop. At the close of the evidence, the respondent moved for a verdict on the ground that the quantity of alcohol actually found being too small to be used for beverage purposes, the testimony of the boy would prevent a conviction. But the jury was not bound to believe the boy. It is apparent that it did not. It was quite within the legitimate inferences to be drawn from the evidence that the cans belonged to the respondent and had been used by him as above suggested. It is not at all probable that the conviction was based upon the small quantity of alcohol recovered by the officers; but rather on account of the alcohol that the jury was convinced the respondent had previously kept in the cans — of which the cans, the alcohol, and the odor, as we have seen, afforded evidence.

Judgment that there is no error in the proceedings and that therespondent takes nothing by his exceptions. Let execution bedone.