Commonwealth v. Walsh

Gray, C. J.

The trial of the challenge to the array by the court, and not by a jury or by triers appointed for the purpose, affords the defendants no ground of exception. By the common law, a challenge to the array might be tried either by the court itself, or by such officers or persons as it might designate. Lloyd v. Williams, 2 Rol. R. 363. 2 Hale P. C. 275. Bac. Ab. Juries, E. 12. 7 Dane Ab. 331. And in this Commonwealth, as elsewhere in New England, all challenges have usually been tried by the court. Samuel Dexter, arguendo, in Borden v. Borden, 5 Mass. 67, 71. 7 Dane Ab. 334. Commonwealth v. Knapp, 9 Pick. 496, 499. 12 Am. Jur. 330-340, 548-550. State v. Jewell, 33 Maine, 583. State v. Howard, 17 N. H. 171, 191. State v. Clark, 42 Vt. 629. 2 Swift’s System, 233. State v. Potter, 18 Conn. 166, 171.

A challenge to the array is to the whole body of jurors returned from the county, and appears, at common law, to have been allowed only on account of the partiality or default of the sheriff or other officer who made the return. All the cases referred to by counsel were of that character. If the sheriff returned a juror on the nomination of one of the parties, or knowingly returned a person more favorable to one party than to the other, it showed partiality, or, as it was called, unindifferency, on the part of the sheriff, which was a ground for challenging the array, and consequently could not be a cause of challenge to the polls. So if the sheriff failed to summon a knight, in a case in which the law required a knight to be one of the jury, it showed a default on the part of the sheriff. So if the sheriff, or his bailiff or under-officer,- for whose acts he was re sponsible, returned persons who were not within the franchise, it was misconduct in the sheriff, and therefore ground for challenging the whole array. Co. Lit. 156. 3 Bl. Com. 359. 1 Chit. Crim. Law, 536-539. If a bailiff returned some of the jurors at the nomination of a party or his prosecutor, it was ground for a challenge to the array, if the same bailiff returned the whole array, but not if the array was made by divers bailiffs. 2 Rol. Ab. 641. If all the jurors were of affinity to a party, it was not a ground of challenge to the array, but only of challenges to the polls. 2 Rol. Ab. 638.

In The King v. Edmonds, 4 B. & Ald. 471, it was held that, while a challenge to the array might be taken for unindifferency of the sheriff or coroners, who were general officers of the court, and were bound by their duty to attend at the assizes, and in fact usually did so, yet, when jurors were summoned by another officer under rule of court, no challenge to the array could be allowed for his unindifferency; and this, not only because he was specially appointed by the court for the purpose, but, as Lord Tenterden observed, because of the great inconvenience that would ensue and the almost utter incapacity of inquiring into the matter satisfactorily at nisi prius, in the absence of the person by whom the panel had been formed, and accordingly without any opportunity of answer or explanation. It was alsf held, in the same case, that the neglect of an inferior officer to summon a person named in the panel was no ground for challenging the array.

In O'Connell v. The Queen, 11 Cl. & Fin. 155, a challenge to the array alleged that the jurors’ book had not been completed in conformity with the requisitions of an act of parliament, and that the names of fifty-nine persons, duly qualified to serve as jurors, had been fraudulently omitted from the general list from which the book was made, and from the book itself, for the purpose of prejudicing the defendant; but the challenge did not contain any specific accusation of the sheriff or other returning officer concerned in preparing the list. Lord Denman, Lord Campbell and Mr. Justice Coleridge thought that the challenge was good. pp. 352-363, 407-411. But Lord Lyndhurst, Lord Brougham, Chief Justice Tindal and the other judges were of opinion that it was bad, and that the only ground upon which a challenge to the array could be allowed by the English law was the unindifferency or default of the sheriff or other officer by whom the panel was returned. . pp. 247, 249, 323, 325, 348. The House of Lords reversed the judgment on another ground, and made no decision upon this point. And the present case does not require us to consider whether fraud or misconduct in preparing a list from which the whole panel was drawn would sustain a challenge to the array.

By the statutes of this Commonwealth, the whole panel is not, as in England, drawn from a single list, or returned and. arrayed by the sheriff. The venires are severally addressed to the different towns and cities in the county by the clerk of the court, who is directed in issuing them to require from each town or city a number of jurors proportionate to its number of inhabitants; and are delivered to the sheriff, and by him transmitted to a constable in each town and city, and served by the constable upon the selectmen and town clerk or upon the mayor and aider-men. Gen. Sts. e. 132, §§ 10-12, 22. The jury list in each town or city is prepared by the selectmen and town clerk and revised and accepted by the town, or prepared by the mayor and aldermen and revised and accepted by the common council. §§ 6-9, 21, From such list the jurors are drawn by the selectmen or the mayor and aldermen; and the venire is served by the constable on each juror so drawn, and is returned by the constable to the court. §§ 15-20, 22. The array of the jurors is made up by the clerk of the court. § 23. Of the constitutionality of these provisions, in the light of the course of legislation and decision in Massachusetts, there can be no doubt. Commonwealth v. Brown, 121 Mass. 69, 78.

Partiality or misconduct in the issue and transmission of the venires by the sheriff or the clerk of the court might be ground for a challenge to the array, because it would show that there was no legal jury. Gardner v. Turner, 9 Johns. 260. Clinton v. Englebrecht, 13 Wall. 434. But an objection to the manner of preparing the jury list, or of drawing the jurors, or to the return of the constable, in any town or city, does not affect the whole panel, but only the jurors from that town or city, and is therefore not a ground of challenge to the array, but only of challenges to the polls of those jurors. 6 Dane Ab. 535. The objections taken in the case at bar are to the manner in which the list from which jurors were drawn in Boston was prepared and posted by the aldermen and the city clerk. If these objections to the thirty-six jurors from the city of Boston supported a challenge to the array, they would be equally effective if they applied only to the single juror drawn from the town of Winthrop or the town of Revere. »

As the facts proved afford no ground for a challenge to the array, we give no opinion upon the sufficiency in form of that challenge, or upon the regularity of the proceedings of the municipal officers.

As to the peremptory challenges to the polls, the terms of the St. of 1862, c-. 84, clearly show that the defendants were each entitled to no more than two challenges, whatever the number of the counts in the indictment, or of the offences therein described.

Exceptions overruled.