State v. Dubord

The judgment of the court was pronounced by King, J.* The defendant was prosecuted under the 3d section of the act of 1819, (Acts p. 62-3) whieh is in the following words: “All and every person or persons who shall inveigle, steal, or carry away any negro, or other slave or slaves, or shall hire, aid, or counsel any person or persons, to inveigle, steal, or carry away as aforesaid any such slave, so as the owners of such slave of slaves shall be deprived of the use, &c., on conviction of any such offence, shall suffer imprisonment at hard labor, &c.” The defendant was convicted, and after ineffectual motions for a new trial, and in arrest of judgment, appealed. It is .contended: 1st. That the indictment is defective, because it contains no allegation of the value of the slave, and because it does not contain the technical words essential to the description of the offence. 2d. That the verdict should be set aside, because several of the persons who were sworn and acted as jurors on the trial, were not the same persons drawn and summoned to serve as jurors. I. To the first objection it would probably be a sufficient answer to say that, the statute declares several offences, among which are: 1st, stealing; 2d, inveigling; 3d, carrying away a slave. Each of these is a substantive offence. All of them haye been charged upon the defendant, and a general verdict of guilty has been found by the jury. No objection has been made to the sufficiency of the indictment, as regards the two offences last enumerated. Thus, if the ground be well taken that the stealing of a slave under this statute is strictly larceny, and that it is indispensable in indictments for larceny to aver the value .of the thing stated, and to use the technical terms essential in the description of that offence, there still remains a eonviction for inveigling, and for carrying away, each of which under the statute is an offence equally as grave as the stealing, and visited with the same punishment. But we think that, even with regard to the stealing of a slaye, the statute has declared a new offence, distinct from larceny; and that it is not necessary, in indictments under it, to aver the value of the slave, nor to use the technical terms descriptive of larceny. The indictment must be governed by the rules applicable to offences declared by statute. Foster, Crown Cases, p. 423, says: “ It may, I think, be laid down as a general rule, that indictments [742] .■grounded on pemil statutes, -especially the most-penal, must pursue the statute, .so as to bring the party .precisely -within it; and this .-rule holds as well with re,gard to statutes which take away clergy from felonies at common law, as to statutes creating new felonies. “ The indictment,” saith Stanford, “ must set forth ,the offence in suc'h .manner as lit -is expressed in the statute, otherwise the 'offender -shall have his clergy.” And,again,,p. 424.: “ Indictments upon penal .statutes must strictly pursue .the statute.” See also 2 Hale, 170. Hawkins, ib. 2, chap. 25, sec. 113. 1 Chitty’s C. L., 286, 287. In the present instance ithe offence could not well have been charged with nmro.precision and certainty, ¡than by using the words of the statute itself. II. Among the ¡jurors -summoned, a list of -whom ¡was --furnished to the itc.cused, the following names-.appeared, viz: J. M. Otto, J. Golding, L. N. Johan, J. W. Robb, J. F. Krabbe. Among the jurors ¡who were sworn, and tried the cause, were the following, viz : J. N. Otto, S. Golding, L. N. Jahan, J. Robb, and J. L, Krabbe. It-is contended that-these variances in the names are material, and .vitiate .the verdict. No .objection ¡was made to -the jurors, v/hen they were .offered to the prisoner or .the .trial. The court is unanimously of opinion that the .objection .now comes too late, and .that ,if the .accused de.sired .to .oppose the swearing o,f the jurors .on this ground, .he should have .made his objection .when they were presented. The law has .carefully .proteoted his rights in this .respect, .and furnished him svith every facility for making such objections as he may have to urge to jurors. He can complain neither of surprise,nor injustice^ Hehad iu.his .possession, for,two days prev.ious.to the trial, .a list of the jurors who were to be presented to him. When J. N. Otto, was presented, .a reference -to the list, furnished -expressly for the .-purpose of enabling him .to make his challenges, must have shown him -that J. M. Otto was the person whom he had the right to insist -on having .presented. He had the right before exercising his challenge to .enquire whether .the juror offered was the juror summoned, and if it appeared .that he was not, to insist .that he be set .aside. No objection was made to the persons in question, on this or other grounds, and no right secured bylaw .to .the prisoner was denied to him on the trial. Not only was objection to the jurors-waived, hut the r.eoord shows that they were expressly accepted by the prisoner. In.the.case of Hill v. Yates, 12 East, 230, a similar question was presented. Lord Ellenbourgh .then said., if thejudges “were to listen .to such an objection, .they might set aside half the verdicts given .at every assizes, when the same thing might happen from accident .and inadvertence, and possibly sometimes from design, .especially in criminal cases.” The case of the King v. Tremaine, 16 Com. Law Rep. 319, does not .appear to us to overrule .the .case ,of Hill v. Yates. In the former it was shown that the person sworn as a juror was a minor, .and absolutely incompetent to serve. The court said that .the verdict was the verdict of eleven jurors, and distinguished tire .case from that of Hill v. Yates, in which the jur.or appeared ,to haye possessed the .necessary qualifications. Sec. 2 Bay’s Rep. 155. 2 Nott & McCord, 264. 1 Chitty, Criminal Pleading, 545. 3 Harris & Johnson’s Rep. 2. Judgment ajjinned. * Footnotes [*] Eusris C. J., absent. [*] R Hunt, for a re-hearing: It has been intimated by the court, that no writ, no order in writing from .the judge, was necessary in directing the jury to be summoned; and that when the law directs the jury to be drawn under the direction of the court, it means in the presence and under the superintendence of the judge, without any order from him. This is at war with the spirit and letter of ourstatutes. The order ought therefore to have [743] been under seal; and for want of the soal of the court, the process was erroneous; arid the' proceedings under it are voidi See the case of The People v. McKay, 18 Johns. Rep. 212, and The State v. Dozier, 2 Spear’s Rep. 216. In the latter case the court say, per O’Neall, J: “ In this case,, it is only necessary to consider the prisoner’s third ground, in-arrest of judgment, for that will avail him; In 2d Hale’s Pleas of the Crown) 160; it is said, “ the venire facias,- as all other process of that court, (the King’s Bench,)’issues in the King’s name, under the seal of the court, and that- of the chief justice, and always-ought to bear test after the issue joined between the King and the prisoner.-” The descrip-tion of process to- compel the attendance of jurors; in 2d Hawk, P. €, book 2, chap. 41, sec. 1, is very much like the course of our own practice in relation to the venire.- He says: “ It is agreed that justices of jail delivery may have a pannel so returned by the' sheriff, without any precept or- writ; and the reason given- for it is, that, before their coming, they always make a general precept to the' sheriff on parchment, under their seals, to-bring before them, at the day of thoir sessions, twenty-four out of every hundred) &c,, ‘ to' do those things which shall be enjoined them on1 tho part' of the' king,’ &c.- This is'a general venire for the term, and is so- far like ours, and- is only different,-that it has no-panel annexed; and ours,- according, to jury law,- has. It is to- be observed, that- this general precept is under the seals of tho justices, and without that would be bad. The argument is, therefore, irresistible,- even from- this authority, which is more favorable t-o the State than any other, that a summons of the jury by virtue of a pretended'writ of venire, not under seal, cannot be good; What efffect the want of a venire not undfer seal, for bbth the-grand and- petit jury, upon the trial of a prisoner convicted of a capital felony,-would have, the case of The People v. McKay, 18 J. R. 112, is full to the point, that it is a good ground to- arrest the judgment!’ Iu the case of the State v Williams’, since decided in South Carolina, where the accused was convicted of murder, and- in four other cases at the same term, judgment was arrested- upon- the- same ground, on the authority of the previous case' of Dozier. The practice of our courts is also- entitled to consideration. I have enquired of the clerks-of the Third, the Fourth, and- the Fifth District Courts, and I find- that writs of venire’ have always beon issued by those courts, and by the former District-, Parish, and Commercial Courts of New Orleans, when a jury was summoned to try a cause. The minutes of the First District Court of New Orleans, also show, that undfer Judges Preston and Canonge — (I have not examined'further) — a venire' was always ordered by the court, for drawing and summoning a jury. The courts havo' called these orders by the' name of venirer The statute of 1831,-expressly styles the order-a venire.- Judge McHenry, in-his orders, uses the word venire. They answer exactly to what Judge O’Neal terms “a-general venire for the term.” Stylo it writ or order, still it must be under seal; and there' is no seal to- the- venires in-this case. Unless the law is observed in-drawing, and summon-ing. jurors, the right to a trial by an impartial jury is gone. 2'd. Iu order to secure to- the accused a trial by an' impartial jbry, the law has not only dbfined tho qualifications of jurors; and' prescribed the mode of drawing, and summoning thorn- under' orders of the court; but it- has explicitly declared, that he shall be tried by the jurors so1 drawn, and by none others. The 35th section of the act of 1805,says: “ Every person who-shall be accused and-indicted for any crime punishable with imprisonment at hard labor for life, or for seven years or upwards, shall have a copy of the indictment and1 list- of- the-jury who are to pass on his trial,-delivered unto him, at least two entire days hoforo he shall be tried for the same.” Bul. & Cur. 248. When the legislature says, the accused shall have a- list of the jurors who are to pass-on his trial delivered to him, it means-that the jurors who are to pass upon his trial shall-be upoip the list delivered to him; it means that he shall be tried by tho jurors upon the list, and no other jurors. It means that, or it means nothing. The record shows, that a list of jurors drawn and summoned1, and who, by law, were t'o pass upon Dnbord’s trial, was dfelivered to him'; and that five persons who were not drawn and summoned, and whose names were noton-theJist of the' jurors delivered to Dubord in conformity with- law, did, notwithstanding, act as jurors in the case, and did pass upon his trial, in direct and palpable violation of law. The court says, that “ this-objection comes too late,” I contend that tho objection-is never too late, when it appears patent on the record that the law has been violated. This is-the doctrine to-be collected from the cases cited in argnmont at p. 739-. It is said the appellant ought to have challenged the jurors who were not on the list, and that tho objection comes too late, and the cases from 2 Bay, 155, and 2 Nott & McCord, 264, are relied on in support of this. The answer is at hand: Whenever a person is drawn and summoned as a juror, and his name is on the list served' on the- defendant, it is his duty, if he wish to object to him, to exercise the right to challenge, at the time the juror is offered; because the juror having been drawn and summoned, if the challenge is overruled, the party would be a good juror on the record. But where a person has not been drawn and summoned, and his name is not on the list of jurors, who are to pass on his trial, he cannot be a juror without a violation of law. See the cases of Norman v. Beamont, and The King v. Tremaine, cited in argument for the appellant. In the cases from Bay, and from Nott & McCord, the juror objected to was duly summoned and sworn, and therefore might have been ehallonged, and consequently the objection camo too lato. But in [744] the present case the persons objected to were not drawn, summoned, or returned, and were not on the panel or list delivered to the defendant; they were, therefore, no jurymen at all, and no challenge, properly and technically speaking, could have been taken to them — since, in no event could they bo good jurors. The defendant is, therefore, entitled to the benefit of his objection after verdict. Rehearing refused.