State v. Flemming

Walton, J.

The defendant is indicted for being a common seller of intoxicating liquors without a license. The indictment was found by a grand jury drawn by virtue of venires not having the seal of the court upon them. He pleads this fact in abatement, and prays that the indictment may be quashed.

I. Was a seal necessary. Undoubtedly. The question is res judicata in this state. It was decided in State v. Lightbody, 38 Maine, 200. Tbe court there held, not only that a seal was necessary, but that the doings of a grand jury drawn by virtue of veni-res not having the seal of the court upon them, were illegal and void, and liable to be quashed on motion. That a seal is necessary upon venires for grand jurors, is not, therefore, an open question in this state.

II. Is the defect amendable. We think not. Every indictment, to bo valid, must be found by a grand jury legally selected, and competent to act at the time the indictment is found. So decided in State v. Symonds, 36 Maine, 128.

To put a seal upon these venires now, would not make sealed instruments of them at the time they were served. They have performed their office and are functi officio. To seal them now, and then hold that they wore legal instruments when served, and when they had no seals upon them, would seem more like trifling, than the performance of a grave and important duty.

Besides, this court has three times decided that the seal upon a writ is matter of substance and not amendable. Bailey v. Smith, 12 Maine, 196. Tibbetts v. Shaw, 19 Maine, 204. Witherel v. Randall, 30 Maine, 168.

And the same point has been decided the same way in Massachusetts. Hall v. Jones, 9 Pick. 446.

In one case in this state, where the clerk omitted to affix the seal of the court to an execution, ho was allowed to do so after it had been levied upon real estate. Sawyer v. Baker, 3 Maine, 29. But the court afterwards refused to allow a justice of the peace to make a like amendment; and referred to the above decision as having been made upon an ex-parte motion ; from which we infer that the court did not regard it as a reliable authority. Porter v. Haskell, 11 Maine, 177.

“So long as a seal is required to be affixed to writs and executions,” said Mellen, C. J., in the case last cited, “though we may not be able to discover its real use, yet we must not dispense with what the law requires.”

And in an early case in Massachusetts, the court said that, while a strict adherence to technical forms might be inconvenient in particular cases, and might even appear at times to be beneath the dignity of the law, still, it is essential to the correct administration of justice that some forms and methods of proceeding be observed ; that if the court felt at liberty to depart from the existing forms, still, there would be a point at which it must stop at last; and then it would be found no easier to comply with the new forms than with those which have been so long known and settled; and the inconvenience would not be less than is now experienced when'indictments and other proceedings should be'quashed for a departure from such new forms. Commonwealth v. Stockbridge, 11 Mass. 279.

A distinction has sometimes been made between original and judicial writs, using the latter term to distinguish such writs as issue during the progress of a suit from those by which suits are commenced. And it has been said that while executions and other strictly judicial writs .may be amended by having the seal of the court affixed to them, original writs cannot be thus amended. Such a distinction is referred to in Bailey v. Smith, 12 Maine, 196.

But this distinction, if it exists, is not favorable to the proposed amendment in this case. Writs of venire facias for grand jurors are not judicial writs, in that technical sense in which the term is used to distinguish such writs as issue during the progress of a suit from those by which suits are commenced. They more nearly resemble original writs, which, it has been held, cannot be thus amended.

But we think the distinction is a very shadowy one, and we attach no importance to it in this case. We rest our decision upon the broad principle that in criminal prosecutions all the proceedings should be strictly according to law; and that when the law requires a writ to be sealed before it is served, sealing it after it has been served, is not a compliance with the law.

III. Is the plea in abatement sufficient in form. We think it ’ is. It states the ground of objection to the indictment in language too clear to be misunderstood by any one. Nothing more should be required in criminal cases. The strictest technical accuracy, such as has sometimes been required in purely dilatory pleas in civil suits, should not be exacted in criminal cases. If the plea states a valid ground of defense in language too clear to be misunderstood, and is free from duplicity, nothing more should be required. In such cases the maxim, aucupia verborum suntjudice indigna—a twisting of language is unworthy of the court—particularly applicable. To require a degree of exactness which it is practically impossible to comply with, would be, in effect, a denial of the right to file such a plea at all. We think the plea is suffi-ient in form.

IY. We now come to the last and perhaps the most important question in the case. Pending this indictment, and in advance of the judgment of the court upon its sufficiency, the legislature passed an act declaring the venires for the grand jurors, by whom it was found, valid, notwithstanding they were issued without the seal of the court upon them; and declaring further that no act or presentment of said grand jurors should be in any wise invalidated by reason of such.defect. Special Laws 1876, c. 307.

Can such legislation be sustained ? Is it within the constitutional authority of the legislature to enact that indictments already pending shall be valid, notwithstanding they have been found by a grand jury not legally drawn ? Clearly not. This question was fully considered in State v. Doherty, 60 Maine, 504.

The court there held that an act of the legislature that should attempt to validate indictments found by a grand jury not legally selected, would violate both the state and the United States constitutions. That case was not decided upon any narrow ground. It was decided upon the broad principle that an indictment is not valid, and cannot be made valid by the legislature, unless it is found by a grand jury legally selected, organized and qualified, “in accordance with some pre-existing law.” Such is the very language of the court; and the authorities there cited fully sustain the position.

And in an earlier case in this state the court decided that the legislature cannot, by act or resolve, dispense with a general law for particular cases. Lewis v. Webb, 3 Maine, 326.

And Judge Cooley, in his work on constitutional law, lays it down as the result of all the authorities, that when the legislature undertakes to suspend the operation of the general laws of the state, the supension must be general ; that it cannot be made for individual cases, or for particular localities. Cooley’s Con. Lim. 391.

The act in question is objectionable upon both of these grounds. It does not purport to change the general law of the state. It does not declare that in no case shall the seal of the court be essential to the validity of venires for grand jurors. It does not declare that in no case shall an indictment be invalidated by such an omission. Nor is it to have effect in any other county than the county of Penobscot. It goes no further than to declare that the venires for this particular grand jury shall be valid, notwithstanding they were issued without the seal of the court upon them ; and that no act or presentment of this particular grand jury shall be invalidated by reason of such defect; leaving the law with respect to all other counties, and all other grand juries in the county of Penob-scot, and all other indictments, precisely as it was before. In other words, it was a direct attempt to dispense with the general law of the state, for a particular locality and for a particular class of cases, leaving it still in force for all other localities and all other cases. Thisj as we have already seen, cannot be done. Such an act is, in principle, as objectionable as a bill of attainder or an ex post facto law.

The escape of criminals through defects in mere matters of form, is always cause for regret. But it would be cause for much déeper regret if the court should disregard any well settled rule of law in order to prevent such a result. We must not do evil that good may come. We must not ourselves become violators of the law in order to punish others. The remedy is the use of more care.

Exceptions sustained.

Indictment quashed.

Appleton, C. J., Dickeeson, Yiegin and Petees, JJ., concurred.

Barrows, J.,

added the following supplementary concurring opinion: If the question, whether the want of a seal upon the venires by means of which they were summoned vitiated the doings of a grand jury, were res nova, I should say that when grand jurors competent to serve had been drawn by the proper town officers in the manner prescribed by law, by virtue of a venire thus defective, and attended court in pursuance of the summons, and the court recognized the venire as its own writ, and caused the jurors thus attending to be duly impaneled and sworn, their acts in the position into which they had been thus inducted ought to be held good. In other words that the directions in the statute with regard to the issuing of venires were designed to enable the court to secure the attendance of a sufficient number of good and lawful men to serve as grand jurors, and that a question as to the sufficiency of the venire could arise only between the court and the municipal officei-s or the juror summoned, who would be competent to waive any such defect in the process by which he was brought into court.

I do not see how it is possible that any substantial right of a person charged with crime could be prejudiced by such a defect, or how it concerns him, any more than it would to know whether the grand juror came to court on foot or on horseback. If a person competent to serve as a grand juror, selected by the right men in the manner prescribed by the statute, presents himself in obedience to the call of the court, I do not see that it makes any difference whether that call is loud or low, or in all respects formal. If he did not come, the court would not be able to compel him if there was a defect in the writ by virtue of which he was summoned ; but where the writ issues from the proper authority I should say that those who were directly affected by it alone could be heard to assert defects in it, and might waive them if they saw fit; and if they did waive them no other parties could complain.

But in the case of the State v. Lightbody, 38 Maine, 200, the court decided this precise question contrary to the view which I have taken.

Since then, I think it has rested with the legislature to declare it by positive enactment, if they did not deem a seal upon the venires essential to the validity of the doings of the grand jury. A venire means, of course, “a venire in due form.” My attention has not been called to any change in the revisions or legislation since the decision in State v. Lightbody, which indicates a change of legislative intention respecting the statutes which there received a judicial construction. There is no indication of it even in Special Laws of 1876, c. 307.

Hence I concur in the result reached in the foregoing opinion.