Lambertson v. People

By the Court, Scrugham, J.

There are certain technical words essential to the statement of some offenses in an indictment, and the omission of which would be fatal before or after verdict; as in murder, the word murdered; in rape, the word ravished; and in larceny, “ feloniously took and carried away.” These are spoken of by Blackstone (4 Bl. Com., 307), as “ particular words of art which are so appropriated by the law to express the precise idea which it entertains of the offense, that no other words, however synonymous they may seem, are capable of doing it.”

The words usual in indictments for the offense of which the defendant was convicted, and which were omitted in this case, are not words of this character, and the indictment contains all of the words of art required.

Neither is the use of the omitted words essential to make

the statement of the offense certain to a certain intent in general, which is all that is required in such pleadings (Co. Lit., 303, a), for all that the pleader should have stated in charging the offense, is expressly alleged or by necessary implication included in what is alleged in the indictment in question, and therefore nothing can be presumed against him by reason of the omission of these words.

The trial of the defendant took place at the term of the Court of Sessions of Kings county, appointed to be held on the first Tuesday of February, 1860, under the act in relation to jurors, and to the appointment and the duties of a commissioner of jurors, in the county of Kings, passed April 17, 1858. One hundred and forty-four jurors had been drawn to serve at that term of the court, and pursuant to •section twenty-three of that act the thirty-six jurors first drawn had been notified to be present on the first six days of said term, and the thirty-six jurors next drawn had been notified to be present on the second six days of said term.

In empanneling a jury for the trial of this indictment, the names of all of the jurors in attendance, who had been notified to attend for the first six days of the term, were exhausted before a full jury could be obtained, and the court directed that the panel should be completed by putting in the box the names of the jurors who had been- notified to attend for the second week of the term, and who were present.

It is now urged that this was error, and that the court should have directed the sheriff to summon talesmen.

Trials of fact by jury, in every court of common law jurisdiction, must be had by jurors drawn, summoned and returned in the manner directed by statute (in the county of Kings in the manner specially directed in the act referred to), provided a sufficient number of such jurors can be obtained.

It is the object of the law to secure, in all cases, persons to serve as jurors who possess all the qualifications of condition and character specified in the statutes regulating the manner in which jurors are to be selected and returned, and of these qualifications in respect to the persons returned, the town or ward officers who are charged with the duty, and to whom such persons are likely to be personally known, can more deliberately, and doubtless more correctly judge, than can the sheriff, in respect to talesmen, whom he must summon in haste from bystanders or others, with whom in many instances he is not acquainted, and of whose qualifications he will be too apt to judge by personal appearances, and from only such information as he may in his haste find it convenient to obtain.

From these considerations, and because the practice admits of great abuse, and renders it comparatively easy for interested and unscrupulous persons to get upon juries, the necessity for summoning talesmen is always to be avoided if possible.

This necessity only arises when a sufficient number of jurors duly drawn and summoned do not appear and cannot be obtained, and it certainly did not exist in this case,.for the jurors who "were notified to appear for the second six days were jurors duly drawn, and summoned to attend that term of the court, and they did appear and were obtained.

It is true that, under their notice, they were not obliged to appear until the second week of the term, but this division of the jurors is intended only for the convenience of themselves and of the court. They are jurors, not of the week but of the term; and this is shown, not only by their being drawn as such, but also by the provision in § 28 of the act for allowing their days of service to be changed.

. The judgment should be affirmed.