State v. Cardoza

Separate Opinion by

Mol ver, A. J.

I concur fully in the conclusions reached by the Chief Justice except that in reference to peremptory challenges of jurors claimed by the defendant and disallowed by the Circuit judge. As to that matter I am entirely satisfied that the ruling of the Circuit judge, in refusing to allow the defendant to challenge peremptorily the two jurors,. Wiley and Fields, was correct, whatever differences of opinion may exist as to the reason given for such ruling. -

In my judgment the act of 1871 — re-enacted in General Statutes, Chapter CXI. — was designed to effect, and did effect, a radical change in the mode previously established of organizing-a jury for the trial of a misdemeanor. The purpose was to-establish marked differences in the mode of obtaining a jury for *247 the trial of any criminal case, whether capital or not, from that prescribed for civil cases.

In Section 19 of that chapter, (being Section 16 of the original act,) the mode of obtaining juries for the trial of civil cases is distinctly pointed out, and the distinguishing features of this mode are:

1. That the persons summoned as jurors shall be arranged in alphabetical order, the first twelve constituting the first jury and the next twelve the second jury.

2. That this arrangement shall be made “ on the day when the jurors are summoned to attend;” that is, the first day of the term.

The effect of this mode of organizing the juries is that it is distinctly known from the beginning of the term who are the persons that will compose the two juries for the trial of civil causes during the whole of that term. But in Section 22 of that chapter, (being Section 19 of the original act,) it is declared that “ nothing contained in the preceding section shall apply to the impaneling of juries in criminal cases, but the jurors shall be called, sworn and impaneled anew for the trial of each case, according to the established practice,” &c. This, to my mind, evinces an intention that the juries for the trial of all criminal cases shall not be organized in the mode prescribed for civil causes; that is, shall not be arranged in alphabetical order, and shall not be organized on the first day of the term, but that they shall be organized “ anew for the trial of each case,” according to the established practice, viz., by lot, and not in alphabetical order. So that for the trial of any criminal case, whether capital or otherwise, the law requires: 1. That the persons who are to compose the jury shall be selected by lot; and, 2. That they shall not be so selected on the first day of the term, but such selection must be made “ anew for the trial of each case.” These two requirements are not formal, but material in their character.

It certainly is not necessary to show this in regard to the first, and it seems to me that it is equally unnecessary to enter into any argument to prove that the second is material; for it manifestly is very material for the accused to know beforehand who are the persons to be presented to him for challenge, and the *248 order in which they will be presented; for that was one of the main reasons why the ninety-seventh rule of court was so rigorously assailed in the case of State v. Price, 10 Rich. 351, and in State v. Boatwright, 10 Rich. 407.

Section 22 of this chapter, (being Section 19 of the original act,) having thus declared that in criminal cases the selection of jurors should be made by lot, and should be made anew for the trial of each case, and not on the first day of the term, proceeds to declare how the lot shall be conducted, viz.: “ According to established practice.” This, it seems to me, is tantamount to declaring that the lot shall bo conducted in the manner pointed out by the ninety-seventh rule of the former court, re-adopted by the present court in practically the same language as the twenty-sixth rule of practice in the Circuit Courts. For, prior to the adoption of the act of 1871, incorporated in the General Statutes, the “ established practice ” in obtaining a jury for the trial of criminal cases was different in misdemeanors from that in capital cases. In the former the juries were organized on the first day of the term by lot, and, as so organized, they constituted the juries for the trial of all cases of misdemeanor which might come up for trial during that term, subject only, just as in civil cases, to such changes as might be occasioned by challenges either peremptorily or for cause, while in capital cases the jury was organized anew for the trial of each case in the mode prescribed by the ninety-seventh rule of court.

To which practice, then, do the words “‘according to the established practice,” as used in the section under consideration, refer ? They cannot refer to the practice previously prevailing in cases of misdemeanor, because, according to my understanding of that practice, the juries were not organized anew for the trial of each case, but were organized on the first day of the term for the trial of all cases of misdemeanor which may be presented for trial during the term, and this mode of proceeding is distinctly forbidden by the previous part of the section.

These words, therefore, must necessarily refer to the practice in capital cases, as every one will admit that, under that practice, the jury was organized “ anew for the trial of each case.” This being s», it follows that the Circuit Court erred in the mode *249 which it adopted in presenting the jurors for acceptance or rejection, but as no exception was taken upon this ground, possibly for the reason that it operated in favor of the defendant, as it informed him beforehand who were the first twelve persons to be presented, such error can furnish no ground in this court for granting a new trial.

If, then, I am right in concluding that the proper mode of presenting the jurors in this case was not adopted, and that they should have been drawn anew and presented according to the established practice in capital cases, it follows necessarily that there was no error in refusing to allow the defendant to challenge peremptorily the two jurors above named. For, according to that practice, it was necessary for him to dispose of each juror as he was presented, either by accepting or rejecting him, before he could proceed to challenge any juror subsequently drawn; and if, as in this case, twelve jurors instead of one be presented at once, it would have been equally necessary for him to dispose of the twelve so presented, or of the ten which remained after the challenges on the part of the state had been allowed, before he could reach the two, Wiley and Fields, who were drawn subsequently to the drawing of the original twelve. If he had accepted the remaining ten and they had been sworn, as would have been proper under the established practice, then unquestionably he would have had the right to challenge peremptorily the two jurors above named as well as the three next who might have been drawn. But in this case, before he could, under the established practice, reach these two jurors, he had exhausted his right of peremptory challenge by challenging five of the original ten. His real ground of complaint, therefore, is, not that he was denied the right of challenge — for as the record shows he actually did exercise such right to the full extent allowed by law, by challenging five of the jurors who were originally drawn and presented — but that he was denied the right of selections, which, as is said in State v. Wise, 7 Rich., at page 416, upon the authority of United States v. Marchant, 12 Wheat. 480, is an altogether mistaken view of the right of challenge, which is a mere right of exclusion and not a right of selection, and the right *250 of exclusion will not be allowed to be exercised in such a way as to draw after it the right of selection.

The judgment of the Circuit Court should be affirmed.*

See separate opinion of Judge Mclver in State v. Smalls, post page 287.