Rafe v. State , 20 Ga. 60 ( 1856 )

By the Court.

McDonald, J.

delivering the opinion.

After the issue had been formed between the State and the prisoner on the bill of indictment, when a panel of forty-eight Jurors were put upon him, he challenged the array on the grounds above stated. It appears by the certificate of’ the presiding Judge, that the Justices of the Inferior Court, together with the Clerk and Sheriff, on the 1st Monday in June, 1854, from the-books of the Tax Receiver, selected persons deemed to be fit and proper persons to serve as Grand Jurors; that the lists containing the names were not sent to the Superior Court, but that the names were separated and put into the Jury-box, as Grand Jurors; that the-names, not thus selected, were put into the box as Petit Jurors, and that the names of the Jurors were not entered into a book provided by the Clerk for that purpose, but that the very names that were selected as Grand and Petit Jurors,, and which would have been put in the box by the Judge if they had been sent to him, were put in it. All the persons drawn as Petit Jurors at the preceding term of the Court, were put upon the panel, with the exception only of those' who were not in attendance; and, in all, there were thirty-eight — twenty-three of whom had been sworn on the panel at the opening of the Court — and fifteen, being present, were-summoned as talesmen.

[1.] The Statutes for selecting Jurors, drawing and summoning them, form no part of a system to procure an impartial Jury to parties. They establish a mode of distributing Jury duties among persons in the respective counties, subject to that kind of service, and of setting apart those of supposed higher qualifications for the most important branch of that service; they provide for rotation in Jury service ; they prescribe the qualifications of Jurors, and the time and manner of summoning them, and are directory to those whose duty it is to select, draw and summon persons for Jurors.

By this means the Court is supplied with Juries to aid in the administration of the laws ; every person subject to that kind of duty is called out, in turn, to perform it, and those called on have timely notice, so that they may arrange to perform a public duty at the least inconvenience to their private affairs.

At every Court of criminal jurisdiction, where the right of trial by Jury is allowed, there must be two Juries — a Grand Jury, whose duties are accusative, and who usually hear evidence to accuse only, and Petit Juries, who are to try the persons whom the Grand Jury accuse of crimes. .The Statutes referred to secure the attendance of persons to make these Juries.

[2.] No person sworn on one of these Juries, can serve on the other; that is, the members of the .Grand Jury who accuse the defendant, cannot be of the Petit Jury to try him. But because a person belongs fo the Grand Jury list of the county, he is not disqualified nor excused from serving on Juries to try offenders. If he has not been sworn on the Grand Jury of the term, of the Court at which the trial takes place, he is a qualified Juror, provided, under the old law, he was qualified to vote at elections for members of the Legislature, and now, if he has the qualification required by the Statute of 1856 ; for all by-standers and others having the qualifications required by law to serve as Jurors, may be summoned as talesmen to make a full panel for the trial of offenders, without regard to the selection made from the Tax Receiver’s book, under the Statute.

[3.] The 34th section Of the 14th division of the Penal Code, has no reference whatever to the mode of selecting Jurors, drawing and summoning them. It has reference. to.the act charged as. an offence. The accused shall be tried! and punished according to the law as it stood when the .of-fence was committed, although the law making it an offencemay have been repealed. But independent of this, what has-been said in reference to the other points, is decisive of this, ground of objection. .

[4.] The trial by Jury, as it was used in.Georgia prior to* the adoption of the Constitution of 1798, is not affected by the mode in which the Jury in this case was impanneled and-summoned. The prisoner was tried by a Petit Jury ; he was accused by a Grand Jury; he had the right of challenge and! the privilege of proving by each Juror as he was put upon him, and other evidence, that he was incompetent as a Juror-in his case, on any ground on which a Juror is challengeable. If the Jurors who tried him were not “omni exceptione major eg,” he had a full opportunity of showing it before they ■were sworn. But what was the usage before the Constitution of 1798, in regard to the selecting, drawing and sum-.moning Jurors ? It was, that it should be done agreeably to such regulations as the Legislature might prescribe. The-Legislature had prescribed the mode in which it should be-done; and the Legislature, at the first session after the adoption of the Constitution, did the same thing; and although the interpretation of the Constitution by the Legislature furnishes no governing rule for this Court, when its action so-soon followrs the Constitution, and when many of the delegates who framed the Constitution were probably in the Legislature, it is entitled to groat consideration. The trial by Jury which had been used in this State prior to the Constitution of 1798, was a trial of every freeman charged with a-crime by his peers; that he was not to be tried upon the-, charge of an individual, but a Jury, should accuse him before-he should be called to answer; to try an accusation thus made, he should have a Jury made of impartial persons; and in all cases he, should enjoy the right .of showing that the persons called to try him were’not impartial. All these privileges the prisoner in this case had, and the Act of 1856 deprived him of none of them. That Act gave the prisoner, ■(indicted as he was for murder,) as a matter of right, a panel of forty-eight persons, from which a Jury for his trial might •be selected. He had a right to demand it, and the Court Rad no power to refuse it.

The Act of 1856, secures to a party accused of an offence against the laws, an impartial Jury, made of persons of sound mind, sober, free from favor arising from kindred to .either party, or to the deceased, (in trials for murder,) who have not formed or expressed an opinion as to the guilt or innocence of the accused, from either having seen the crime committed, or from having heard any part of the evidence delivered on oath; who have no prejudice or bias resting on their minds for or against the accused, and whose minds are .perfectly impartial between the State and the accused. But it is objected, that if a person has formed and expressed an .opinion as to the guilt or innocence of the accused, from rumor only, he ought not to try the cause; and that such person was held to be incompetent before the Constitution of 1798. As has already been said in respect to other grounds, it is sufficient to say, that before that time, such matters had •been the subjects of legislative regulation, and such legislative regulations had never been considered as infractions of ¡the great privilege of trial by Jury. The terms found in the Constitution, “ as heretofore used in this State,” do not restrict the legislative power over the subjects embraced in the Act of 1856. But it is by no means certain that an expression of opinion, whether upon a knowledge of facts or upon rumor, if there were with it no mixture of partiality, or of ill will, or bias, or prejudice against the accused, rendered a person an incompetent Juror under the law as it existed and was practised at that time. Men of the soundest heads and purest hearts, and without the slightest prejudice against the perpetrator of a crime, might pass an hypothetical opinion in his case, predicated on rumor, and still be competent to do ample justice upon hearing testimony falsifying the rumor. Indeed, if the rumor had been adverse to the innocence of the accused, condemnatory of him altogether, slight circumstances of palliation would have a more powerful influence in favor of the accused than if the Juror had heard no rumor.

In the case of Robinson vs. The State of Georgia, this Court held, that the Act of 1843 did not take away the right to challenge a Juror “propter affectum,” but only prescribed the manner in which that right should be exercised. (1 Kelly, 571.) So it is with the Act of 1856. The prisoner has all his rights; but the manner in which they are to be exercised, is changed.

But has the right of a slave to a trial by Jury, as it existed before the Constitution of 1798, been violated in this case or by the Act of 1856 ?

The evidence in this case shows that the confessions objected to were not elicited by promises or threats; and although they may have been induced by the remarks and interrogation of the Sheriff, the record shows that they were voluntarily made, and are admissible, though, as was said in Wilde’s case, I much disapprove of the manner in which they were obtained — spiritual exhortations had better be left •to the clergy.

Judgment affirmed.