People v. Wintermute

Kiddbe, J. The above cause comes before this court from the county of Yankton upon writ of error. Several questions arising upon the motion for a new trial and arrest of judg — 64 — ment were presented, but as we regard tbe motion in arrest decisive of tbe case, that question will only be considered. The Statute of 1862-3, Criminal Code, 107, § 13, provides that, “ a person held to answer a charge for a public offense, may challenge tbe panel of the grand jury, or any individual grand, juror, before they retire, after being drawn and charged by tbe court.” Among the causes for individual challenge, the act embraces the following: Section 15, Sub. Div. 6, “That a state of mind . exists on his part in reference to the case, or to either party, which satisfies the court in the exercise of sound discretion, that he cannot act impartially and without prejudice to the substantive rights of the party challenging.” After the grand jury in the present case had been impan-elled, charge and sworn, and before they retired, Peter P. Wintermute, this defendant, “ who was then held to answer a charge for a public offense ” before that body, challenged an individual member thereof in accordance with the permission and for the cause specified in sub-division six above quoted. The court disallowed the challenge upon the ground that the Statute of 1862-3 had been repealed by subsequent territorial legislation, and was not in force. . That the presence of a disqualified grand juror vitiates the whole panel is well settled by numerous authorities, among which are the following: 1 Bish. Crim. Pro., § 884; Commonwealth v. Cheny, 2 Virg. Ca., 20; 1 Ch. C. L., 307-8-9; 2 Hawk. Cr. Ch., 25, § 16; Barney v. State, 2 S. & M., 68; Portis v. State, 23 Miss., 578; Stokes v. States, 24 Miss., 621; Miller v. State, 33 Miss., 356; State v. Symouds, 36 Me., 128; State v. Lightbody, 38 Me., 200. The grand jury impanelled and the challenge thus denied, that body returned to consider whatever presentments might be made. Subsequently it indicted the defendant, thus held to answer, for murder ; and afterwards he was tried and convicted in the District Court in the county of Yankton for manslaughter. If, therefore, the Statute of 1862-3 was not then in force, the court below, by its rulings, so far as the same are presented by the motion in arrest, gave to the defendant all the rights — 65 — to which he was entitled. If that statute was then in force, the right to challenge a juror for partiality and a condition of mind prejudicial to the substantive rights of the defendant was denied. The present legal status of the law of 1862-3, and the place it should hold in the jurisprudence of this Territory, are the only questions we need discuss. If the law was not in force the motion in arrest should be overruled. If it was in force the judgment must be arrested. The history of the legislation in this Territory which relates to the questions we are discussing, is this: The Act of 1862-8 was repealed by the Act of 1868-9, page 165, Sec. 799. That of 1868-9 was repealed by the Act of 1872-3, page 23, chapter 5. Section 1, of the Act of 1872-3 provides, “ That chapter first of the laws of 1868-9, entitled ‘ An act to establish a Code of Criminal Procedure for Dakota Territory,’ approved January 12th, 1869, be and the same is hereby repealed.’ ” Is then the Statute of 1862-3 revived by repealing that of 1868-9, which repealed the former? The principle of law, that the repeal of the repealing act revives the statute originally repealed, has been too often adjudicated and the principle is too well established to require elaboration or a lengthy citation of authorities.* Blackstone, says: (Vol. 1, page 90) “If a statute that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose.” The same rule is laid down in Potter’s Dwarris on Statutes, 159; in Tattle v. Gimwood, 3 Bing., 493; in Commonwealth v. Churchill, 2 Met., 118. This general principle may be found almost anywhere where the subject is discussed, and was not denied, as we understand, by the counsel who represented the People in the argument of this case. — 66 — Indeed, the rule extends further than is necessary in its application to this case. “ If a repealing statute, and a part of the original statute, be repealed by a subsequent act, the residue of the original statute is revived.” 9 B. and C., 354; if an act of parliament be revived, all acts explanatory of that so revived, are revived also; 2 Burr, 747. The denial of the legal force of the statute of 1862-3, was based upon other reasons which we will proceed to consider. Section 2 of the Act of 1872-3 provides, “ That from and after the passage and approval of this act, the proceedings, practice and pleadings in the District Courts of this Territory, in criminal cases, shall be in accordance with the proceedings, practice and pleadings of the common law, except where the same is otherwise expressly regulated by law.” It was contended on behalf of the People, that this section qualified the unlimited repeal of the Act of 1868-9, fixed by the first section, and introduced the common law as a rule of practice in lieu of all statute law. In other words, it is contended that these words manifest an intention in the legislature not to revive the Act of 1862-3, but to adopt the common law in lieu of it. Such is not the meaning of this section. In construing a statute, all the elementary writers say, it must if possible be so construed as to give an intelligent meaning to all the words of such statute, and any construction which necessitates the rejection, or which renders meaningless some words, and especially words to which some obvious meaning was intended, is presumptively erroneous. When the legislature adopted the common law as the rule of practice in this Territory, “ except where the same is otherwise expressly regulated by law” it obviously meant something by these words, and so to construe the act as to render such words meaningless is a violation of the plainest principles of legal construction, whether of statutes or any other documents. An examination of the criminal statutes of the Territory show, that if these words — except where the same is otherwise expressly regulated by law — do not refer to the Act of 1862-3, — 67 — as where matters of criminal practice are “ regulated bylaw,” they refer to nothing. The first Act of Criminal Procedure passed in the Territory, was that of 1862-3. The second was that of 1868-9. Now the repeal of the Act of 1868-9 by that of 1872-3, left nothing but the Act of 1862-3, to which the expression quoted above could refer. Hence, we hold that these words are not meaningless, but do refer to the Act of 1862-3; and that the intention of the legislature was to incorporate the common law upon that act, and thus by the act and the common law to create a harmonious system in which the common law should constitute the ground work, and the statute specific directions in matters of criminal procedure. It is well understood by the profession in the Territory, that this statute (the one of 1862-3) was not full, i. e., its provisions did not meet every emergency; therefore, the legislature could see the necessity of commingling its provisions with the common law. The theory that the common law alone should be a rule of procedure seems to us unreasonable. The Common Law of England was so modified by English statutes, that at this day, to sever it and bring it to a new country and apply it without more modern machinery, is practically an impossibility. On the contrary, to receive it in connection with special statutes, is in accordance with the principles of the American system, and the principles of our jurisprudence. It is not the duty of the court, therefore, to strike out the common law and act alone upon the statutes of the Territory, and go back to the common law alone, but to weave our statutes and the common law into one uniform texture of jurisprudence, thus construing the statutes in harmony with our modern policy and with the common law, and not adopting either to the exclusion of the other. The next point of objection to the legal authority of the Act of 1862-3, and the doctrine of a revival of a repealed statute by the repeal of the repealing act, arises from an Act of Congress which it is contended bears upon this question; vide 16 U. S. Statutes at Large, 431. The section of the act relied upon is as follows: — 68 — Seotion B. “ And be it further enacted, That whenever an act shall be repealed, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided.” This section is from the Act of February 25th, 1871, and is claimed as a rule of legislation, or legislative construction within this Territory. The power making this section operative within the Territory, is claimed to be found in the following provision of the Organic Act, section 16: “ That the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said Territory of Dakota as elsewhere within the United States.” The question under these sections is: does the Act of Congress obtain force within the Territory so as to control legislative action? In deciding this question we must look to the title and body of the act to discover its scope and intention. Such examination shows conclusively that this act, not only has no binding force within the Territory, but was never intended to have. The caption of the act is, “ An act prescribing the form of the enacting and resolving clauses of acts and resolutions of Congress, and rules for the construction thereof.” The very purpose of the Act by Congress, as plainly expressed by the enacting power, is to furnish rules of construction for themselves, and the words of the clause fixes the definite limitation. “ Though the title of an act,” says the author of the notes in Dwarris, 102, cannot control the plain words in the body of the statute, yet, taken with other parts, it may assist in removing ambiguities.- The intention of the law makers, it has always been held, is the best guide for the construction of statutes. The body of the act is in harmony with the enacting clause. It gives the form of the enacting words of a Congressional law or resolution, and the definition of various words which may be used therein; and then comes the section cited above as to repealing acts, and the law of construction, which, by this section, Congress adopted for itself. — 69 — Another rule of construction always acknowledged and acted upon, is that in determining the meaning of a law or the intention of a law maker, the evil sought to be remedied should be considered. Congress has been enacting statutes now for nearly a century. It would, therefore, be impossible to retain in mind all the repealed acts which the repeal of the repealing acts might revive. It was, therefore, perhaps wise to establish the rule that no repealed act should be revived except by express words. However this might have been for Congress, the reason has no force within the Territory where the statutes are limited to a few years and could easily be called to ihind. But the controlling reason upon this question lies in the fact, that by the Organic Act, section 6, it is provided:- That “the legislative power of this Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act.” This act gives to the legislature complete control of the question of legislation subject to the limitation therein named. In reference to the manner in which'laws shall be enacted, or in which they shall be repealed, whether it shall be by direct words, or by implication, or repugnancy, no rule is laid down. And can it be contended, that some ten years after the Organic Act was passed, after the legislature had always acted without limit under it, that a rule expressly made for Congress itself, operates to modify or limit that Organic Act? and, therefore, laws must be passed and repealed, or revived in the Territory, just as they are passed, revived, or repealed by Congress? Let us reverse this proposition: In the act referred to, Congress provides how it will enact laws, what captions, titles, etc., it will have, and how it will repeal them. Would it be contended for a moment, that if a Territorial law, duly passed, did not have the same form of heading or caption that a law of Congress has, it would be void? and, yet, this reasoning is as forcible as to the form of enacting clauses as it is to the form of repeal. — 70 — Enacting criminal procedure, is one of the “rightful subjects of legislation ” in this Territory, and if Congress intended to establish a rule which would control Territorial legislation, it seems to us that it would, as it has often done heretofore, have made its provisions in the statute above referred to — in express terms- — -applicable thereto. We are, therefore, of opinion, that this law of Congress does not, and never was intended to operate within the territories, and that it has no bearing upon the question at issue. Prom the above reasoning and authorities, we hold that the Statute of 186*2-3, under which the said challenge was made, was then and there in force, that the refusal to grant the challenge asked for, took from the defendant one of the greatest safeguards guaranteed by law, and hence the judgment in this case must be arrested. In this opinion the court expressly declines to decide, or give any intimation as to the effect of the past proceedings upon a future prosecution. It orders the defendant into custody to answer to any indictment which may be found, reserving all questions arising upon any new indictment for future adjudication. Footnotes [*] Since this opinion was announced this rule has been abrogated by Section 2i32, Civil Code, which provides: “ Whenever any act of the Legislative Assembly is repealed, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided,