Malone v. State

By the Court.

Lumpkin, J.

delivering the opinion.

This is a writ of error to Greene Superior Court, upon an indictment for murder, against William H. Malone, otherwise called William H. Hall. The cause came on for trial at the March Term, 1850, of the Superior Court of said County, His Honor Herschel V. Johnson, presiding.

We propose to consider the questions made in the record, in the order in which they are presented in the bill of exceptions.

[1.] When the State presented to the prisoner a panel of forty-eight Jurors, he challenged the array, on the ground that they had not been chosen and sworn according to law, in this, that they were selected by a majority of the Justices of the Inferior Court, together with the Clerk and Sheriff of the County, and by them sent up to the Judge of the Superior Court; whereas, the said Jurors should have been selected, by the Clerk, in the presence and under the immediate direction of the Judge of the Superior Court.

The sum of this objection is, that the forty-eight Petit Jurors were chosen under the Act of 1805, (Prince, 443,) instead of the Act of 1797, (Watkins, 627,) as they should have been.

By reference to these Acts, it will be seen that Petit Jurors are not selected at all, under either of them. Under both, the Clerk of the Superior Court is directed to procure from the tax book, a list of all persons liable to serve as Jurors, according to the qualifications therein prescribed, (which, by the way, are precisely the same under both Acts;) and this is a mere mechanical duty to be performed by that officer, and one which involves no discretion whatever. From this list, by the Act of 1797, the Clerk, under the direction of the Judge of the Superior Court, is to select the Grand Jury; and from the same list, under the Act of 1805, the Grand Jury is to be selected by the Justices of the Inferior Court, or a majority of them, together with the Clerk and the Sheriff.

The change, therefore, is only as to the mode of selecting the Grand Jury, and the persons remaining on the list, under both Acts, are to be Petit Jurors for the trial of all civil and criminal causes; and under both, persons returned as Jurors, who are not qualified to serve, are to be discharged on challenge and proof by either party, or on the Juror’s own oath as to his incompetency.

Mr. Prince is right, therefore, in assuming that the mode of selecting Jurors under the Act of 1797, is superseded by the 57th section of the Act of 1805 ; and the uniform practice of the Suporior Courts throughout the State, for near fifty years, is justified by a proper construction of these Statutes; and our judgment is, that the objection taken to the decision below, overruling the motion to quash the array because the Jurors were improperly drawn and sworn, has nothing in it.

[2.] The panel was then put upon the prisoner, and Joseph Nelson and Abner B. Ely, having been sworn as Jurors in chief, Bernard Moore being called, and having shown himself competent, by answering negatively the questions propounded to him under the Act of 1843, he was, at the request of counsel for the accused, put upon triors, and the two Jurymen aforesaid wore appointed for that purpose, who, without having been sworn as triors, returned a verdict that Moore was competent. The prisoner announced that he was content with Mr. Moore, and he was sworn in chief. Several other Jurors were also passed upon by said triors, each of whom was found -to be competent, and challenged peremptorily by the defendant.

It being subsequently discovered that the two Jurors who had acted as triors, were not specially sworn as such, the Court directed the list to be again called, commencing with the names of those who had been passed upon by the triors ; and the prisoner objected to each, upon the ground that they had already been put upon him and peremptorily challenged ; which objection was allowed by the Court, and the Jurors were setaside for cause, and not counted against the prisoner.

When the name of Bernard Moore was called, he was put upon the prisoner and objected to, on the ground that he was sworn already in chief as a Juror to try the prisoner. The Court sustained the objection, and decided that Moore should be of the Jury to try the cause. The prisoner, by his counsel, excepted to this opinion.

We have bestowed much consideration on this portion of the record. The ground of challenge to Moore was, that he had already been sworn in chief, and the presiding Judge certifies that he understood the objection as tantamount to insisting that he should serve as a Juror.

If this explanation of the proceeding be correct, and it seems to me to be the only reasonable one that can be given, no injustice has been done. Consensus lollit errorem, (2 Just. 123,) viz : the acquiescence of a party who might take advantage of an error obviates its effect. Still, if upon an examination of ibis record, wo had found it did not justify the construction put upon it by Judge Johnson, and that by reason of this misunderstanding, the prisoner had been deprived of some legal right, we should have felt constrained to remand the cause. Such, however, in our judgment, is not the fact. It is now contended in the argument, that this was a challenge for cause, and that being allowed, the Juror should have been set aside, as a matter of course; but nothing had transpired as to Bernard Moore, which would, in the least, affect his competency. He had, when interrogated, not only stated on oath, that he had formed and expressed no opinion in regard to the guilt or innocence of the prisoner, and that he had no bias or prejudice resting on his mind for or against him; but he was put upon triors and pronounced indifferent by them, and having passed through this ordeal, the prisoner professed himself satisfied, aud he was sworn well and truly to try the issue between the people and the prisoner. What, I ask, was there in all this, to make him objectionable for cause? Nothing. As to the other Jurors who had been found competent and then peremptorily challenged, it might be supposed that their capricious rejection by the accused had excited some ill-will in their minds towards him, and hence the Court very properly, perhaps, permitted them to be set aside, without charging them to the prisoner as peremptory challenges. But the very reverse of this was true as to Mloore. His acceptance was calculated to conciliate him toward the prisoner.

It will be observed, too, that there is no complaint by the prisoner, that Moore was forced upon him, notwithstanding he objected to him on account of the irregular manner in which his competency was ascertained. Had this been done at the time, as the trial progressed, or afterwards, upon a motion for a new trial, the result might have been different. It was competent for the prisoner to have accepted the Juror before he was put upon triors, and equally so after he was passed upon by the triors; and this he did, as is shown by the record. The objection, therefore, comes too late, and while it is specious and ingenious, the facts in the record, unfortunately, do not support it. Taking any view, therefore, of this exception, the Court is of opinion that there is no error.

[3.] We come now to the last error assigned. The prisoner, by his counsel, objected to the sayings of John D. Hall, the brother of the accused, as testified to by the Atkinsons, James and William, but was overruled by the Court, for the reason that the evidence previously adduced, had sufficiently established a common purpose in the perpetration of the felony, to authorize the admission of this proof.

We will not recapitulate the evidence. It is exceedingly questionable whether the sayings of John D.Hall were not heard by William. The probability is that they were. He was certainly in a position where he might have heard them. These sayings could have had but little influence, if any, on the minds of the Jury; their object being merely to put inquirers upon a .false scent as to the whereabouts of the deceased; but, in our opinion, the facts which were in proof, fully warranted the introduction of these sayings; for, whatever doubt might exist as to a privity of intention, a community of action was most palpably proven.

But the counsel for the prisoner insists, that admitting the evidence to have established a common purpose between these parties, that still it is the acts only, and not the sayings of the accomplice, which can affect the accused. But we apprehend the law to he otherwise ; and the rule upon this subject, to be correct, as thus briefly stated by Ch. J. Tilghman, in The Commonwealth vs. Glerle and others, (8 S. § R. 9) — “You cannot,” says he, “ affect one man by the speeches of another, until you have proved that they were engaged in a common enterprise; that being proved, the words of one are evidence against the other, but not conclusive.”

Mr. Roscoe, in his Treatise on Criminal Evidence, maintains the same doctrine. After stating that where several persons are proved to have combined together, for the same illegal purpose, any act done by one in reference to the common object, is, in contemplation of law, as well as in sound reason, the act of all, he adds, that verbal declarations are equally admissible, and that declarations made by one of the party in pursuance of the common object, are evidence against the rest, who are as much responsible for all that is said and done by their associates, in carrying into effect the concerted plan, as if it had been pronounced by their own voice, or executed by their own hand. Roscoe on Crim. Ev. 80.

The Court, therefore, is unanimously of the opinion, and such is their judgment, that there is no foundation for this writ of error.

It only remains to say, that we leave this unhappy man to the awful doom which awaits him. A fitter sacrifice, perhaps, has rarely been offered up on the altar of criminal justice. May he find that mercy which he so relentlessly denied to his helpless and bleeding victim!