Costly v. State

By the Court

Lumpkin, J.

delivering tlie opinion.

[1.] If the Juror, John McCarter, was not qualified, it was but cause of challenge proper defectum; and could have been made by the prisoner, and must have been made before the Juror was sworn. ' And it is well settled, both by the authorities of the Courts of Great Britain and of this State, that it is too late, after a Jury has been sworn, to challenge any of its members proper defectum ; or to move to set aside the verdict on that account. (2 Com. Digest, 322, title Challenge Peremptory, letter C; 1 Chitty Crim. Law, 440, 441, 541; 4 Dallas, 353 ; 2 Bay. 150; 7 Cranch. 290; 3 Bacon, 750; Coke Litt. b. 155; Dudley (Ga.)85; 2 Ala. R. 275 ; 2 Man. & Ry. 309 ; 8 Barn. & Cr. 252.)

Some, of the cases cited show that the Jurors taken were wholly disqualified to serve, if objected to — some aliens, some infants, &c. who are no where allowed to serve on Juries, if challenged. And these cases and others clearly establish the rule, that if such disqualified Jurors are taken and not objected to, or challenged before being sworn, they cannot be set aside except for matter subsequent to such swearing; and their verdicts, both in criminal and civil cases, are as binding and valid as if they had possessed the proper, full, and in all respects, requisite qualifications. And it makes no difference whether such want of qualification was known or unknown at the time the Juror was sworn. In either case, the verdict must stand and the judgment follow it. (2 Porter R. 100; 3 Stewart, 454; 1 Yerger, 219; 8 Ib. 508; 1 Institutes, 108 ; 3 Vin. Abr. 11, 764; 2 Hawk. Pl. Cr. 43 ; Yelverton’s Rep. 24.)

Rut it is needless to discuss $his question. Since the decision in the case of' John Ep.ps, at Gainesville, Oct. 1855, and the construction there put upon the 38th section of the Judiciary Act of 1789; (Cobb 548) it is too late now to consider this a debateable point.

[2.] As to the Juror, Butler, we are unwilling to control ■:the opinion of tbe Circuit Judge as to his competency, resting .■as it does, wholly upon the credibility of the Juror and his assailants. If he is to be believed, he was an impartial Juror— if Carlton and Mrs. King, he was not indifferent. Wo would not undertake to disturb the finding of triors — why should we that of the Court, sitting quoad this point in the place of triors ? It is with great and increasing reluctance that we will sustain any objection to a Juror, after verdict, when no attempt was made to test his disinterestedness before being sworn. The ancient rule, as laid down by Golee, Sale and Sawhins, was against this practice; and the sooner wo return to the doctrine as maintained by them, the better.

[3.] The provision in the Constitution of 1798, that “ trial by Jury, as heretofore used in this State, shall remain inviolate”, has been invoked in aid of' both of the foregoing grounds. „ We apprehend that nothing more is meant than what is found in the Constitution of 1777 and reiterated in the Constitution of 1789, that “ trial by Jury,” (as contra-distinguished from any other mode) “ shall remain inviolate forever.” (Watkins’ Dig. 16, 29.) And if any importance be attached to the words “ as heretofore used in this State” in the Constitution of 1798, we answer, that before the adoption of the Constitution of 1798, it was expressly enacted that •“no exception against any Juror on account of his qualification, shall be allowed after he is sworn.” (Watk. Dig. 627.)

There is no conflict, therefore, between the Constitution of 1798 and the 38ih section of the Jttdiciary Act o/1799, inasmuch as the mode of impannelling a Jury designated and required by this Act was, that which was in use in the State at the adoption of the Constitution of 1798.

And we embrace this occasion to repeat, emphatically, the position taken by this Court in 5 Ga. Rep. 194 et passim, .and again and again occupied before and since, namely: that this provision in our Constitution was intended merely to secure the individual from the arbitrary exercise of power, unrestrained by the great fundamental and established principles of private rights and distributivejustice. But that the forms of administering justice and the duties and powers of Courts, as Incident to the exercise of a branch of sovereign power •must ever be subject to Legislative will. Is not the method of drawing, summoning and impanneling both Grand and Petit Juries entitled different in this State from what it is in England? And yet, what defendant has ever challenged the array on that account ? Could it be made to appear that a Statute of the State produced a total prostration of the trial by Jury or involved the accused in difficulties which rendered that constitutional right unavailing for his protection, we might, under such circumstances, consider ourselves called upon to interfere. No such Act has been passed. It would be disrespectful to anticipate such an improbability.

As to the other formal exceptions we clónot deem them deserving of a serious notice. That a most brutal murder was perpetrated, no one who reads the evidence can doubt. And the most that can he said in favor of the defendant is, that his agency in the tragedy was not quite, perhaps, so diabolical as that of one other of the accomplices. It was quite sufficient, however, as to justify fully the verdict of guilt, which was' rendered against him. A Jury returning any other, upon the testimony, would not assuredly have escaped being at-tainted, did that ancient Common Law practice still prevail In Georgia;