Gropp v. People

Mr. Justice Sheldon delivered the opinion of the Court: The defendant, George Gro.pp, was indicted for murder, and convicted of manslaughter, in the Madison circuit court, and sentenced to the penitentiary for the term of six years. He brings the record here, and insists upon two supposed errors as grounds for a reversal of the judgment, both which respect his challenges of jurors. The trial was had at the October term, 1872. It appears that on the second Monday of the term, upon calling the twenty-four jurors who had been summoned for that week of the term by the sheriff, in obedience to the venire to him issued, only fifteen of them answered to their names, and the court excused five of these from serving, leaving only ten jurors. Whereupon the court ordered the sheriff to summon fourteen persons to fill the panel, which was accordingly done. Upon the calling, as jurors in the cause, seven of the fourteen persons so summoned by the sheriff in obedience to such order of the court, the defendant, by his counsel, challenged them, on the ground of their having been in that manner summoned and put upon the panel of jurors, and that they had not been drawn from the list of jurors selected by the county court, which challenge was overruled by the court and the defendant excepted. Under the “act concerning jurors,” of April 10, 1872, which was in force at the time of this trial, the panel of jurors was irregularly filled. Instead of the court ordering the sheriff to summon a sufficient number to fill the panel, the clerk of the circuit court should have drawn from the box in the county clerk's office, containing the list of persons selected by the county board to serve as jurors, a sufficient number of jurors to fill the panel, and have issued a summons to the sheriff commanding him to summon them; and they should have been the persons summoned by the sheriff. Were this a civil cause, no doubt it would have been a good cause of challenge, that the panel of jurors was so constituted in violation of this act. But the question arises, whether the mode of filling a deficient panel of jurors prescribed by this act applies to criminal cases. Section 178 of the Criminal Code, Scates’ Comp. 406, provides that it shall not be necessary to issue a venire in any criminal case, and in all criminal cases where the panel of jurors shall be exhausted by challenges or otherwise, and whether any juror has been elected and sworn or not, it shall be competent for the court to order on their minutes a tales for any number of jurors not exceeding twenty-four, returnable instanter, out of which persons so ordered to be summoned it shall be lawful to empanel a jury for the trial of any criminal case. That section stood and remained in force as a separate and independent provision in the criminal code at the same time with chapter 58 of the Revised Statutes of 1845, entitled “Jurors,” which chapter, like the act in question of 1872, purported to regulate the mode of selecting and summoning jurors and supplying deficiencies in their panels. This act of 1872 in express terms repeals said chapter 58 of the Revised Statutes entitled “Jurors,” as also two other amendatory acts relative to the same subject, but it does not purport to repeal section 178 of the criminal code, nor does it contain any general repeal of inconsistent acts, or parts of acts. This affords a strong implication that the legislature intended to leave this-section of the criminal code in force, and applicable to trials in criminal cases. If there had been no express repeal of any law, there would have been ground of argument that there was a repeal by implication of this, section, as being in a degree inconsistent with the newly enacted law. But when the legislature took pains to expressly repeal by their titles three other acts pertaining to the same subject, it is reasonable to presume that they repealed all of the former enactments relating thereto which they intended should be repealed. As to what was repealed, the legislature declared. And in the enumeration of what was repealed, they make no mention of the section in question. Why was this, except for the reason that the legislature, for satisfactory reasons, thought it best that this provision should be retained ? We must so regard it. To hold, then, this section to be repealed by implication would seem to be to thwart the purpose of the legislature. Certain it is, that it is not expressly repealed, and not being prepared to say that it is repealed by implication, we must hold it to be still in force. The provision in this section, so far as respects the trial of any criminal case, warranted the court in making up the panel of jurors in the manner it did. We perceive no error in the overruling of this challenge. Larkin C. Kearon, one of the seven so called as jurors, replied, in answer to an inquiry made of him, that he had sat upon a jury in a court of record within one year; whereupon, for that reason, the defendant challenged the juror, but the court overruled the challenge, and the defendant excepted. Under the act of February 11, 1859, entitled “An act to amend chapter 83 of the Revised Statutes entitled ‘Practice,5 55 it was made a sufficient cause of challenge to any juror, that he had been sworn as a juror at any term of court held within a year prior to the time of such challenge. But the “ act concerning jurors55 of April 10, 1872, expressly repeals the said act of February 11, 1859, and enacts that it shall be a sufficient cause of challenge of a petit juror, if he is not one of the regular panel, that he has served as a juror on the trial of a cause in any court of record in the county within one year previous to the time of his being offered as a juror. It did not appear that this juror had sat upon a jury in a court of record in the county within one year. Therefore, no sufficient cause of challenge in this respect was shown, and the court rightly overruled the challenge. Finding no error in the record, the judgment must be affirmed. Judgment affirmed.