People v. Wintermute

• Decision Date: 31 January 1875
• Citation: 46 N.W. 694,1 Dak. 63
• Parties: People v. Wintermute
• Court: South Dakota Supreme Court

46 N.W. 694

1 Dak. 63

People

v.Wintermute¹

Supreme Court of the Territory of Dakota.

Jan. Term, 1875.

Error to district court, Yankton county.

Shannon, C. J., dissenting.J. R. Gamble, Dist. Atty., and Jason Brown, for the People. Leonard Sweet, G. C. Moody, Bartlett Tripp, and S. L. Spink, for defendant.

KIDDER, 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 judgment were presented, but, as we regard the motion in arrest decisive of the case, that question will only be considered. The statute of 1862-63 (Crim. Code, p. 107, § 13) provides that “a person held to answer a charge for a public offense may challenge the panel of the grand jury, or any individual grand juror, before they retire, after being drawn and charged by the court.” Among the causes for individual challenge, the act embraces the following, (section 15, subd. 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 impaneled, charged, 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 subdivision 6 above quoted. The court disallowed the challenge upon the ground that the statute of 1862-63 had been repealed by subsequent territorial legislation, and was not in force.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. Proc. § 884; Com. v. Cherry, 2 Va. Cas. 20; 1 Chit. Crim. Law, 307-309; 2 Hawk. P. C. c. 25, § 16; Barney v. State, 12 Smedes & M. 68;Portis v. State, 23 Miss. 578;Stokes v. State, 24 Miss. 621;Miller v. State, 33 Miss. 356; State v. Symonds, 36 Me. 128; State v. Lightbody, 38 Me. 200. The grand jury impaneled, 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 for manslaughter. If, therefore, the statute of 1862-63 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 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 1862-63, 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 1862-63 was repealed by the act of 1868-69, p. 165, § 799. That of 1868-69 was repealed by the act of 1872-73, p. 23, c. 5. Section 1 of the act of 1872-73 provides “that chapter first of the Laws of 1868-69, 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 1862-63 revived by repealing that of 1868-69, 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, (1 Bl. Comm. p. 90:) “If a statute that repeals another is itself repealed after wards, the first statute is hereby revived, without any formal words for that purpose.” The same rule is laid down in Potter's Dwar. St. 159; in Tattle v. Grim wood, 3 Bing. 493; in Com. v. Churchill, 2 Metc. (Mass.) 118. This general principle may be found almost any where 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. Indeed, the rule extends further than is necessaryin 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. Doe v. Gully, 9 Barn. & C. 354. If an act of parliament be revived, all acts explanatory of that so revived are revived also. Williams v. Rougheedge, 2 Burrows, 747. The denial of the legal force of the statute of 1862-63 was based upon other reasons, which we will proceed to consider. Section 2 of the act of 1872-73 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 1868-69, 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 1862-63, 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 of, or which renders meaningless some words, and specially 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 1862-63, as where matters of criminal practice are “regulated by law,” they refer to nothing. The first act of criminal procedure passed in the territory was that of 1862-63. The second was that of 1868-69. Now the repeal of the act of 1868-69 by that of 1872-73 left nothing but the act of 1862-63, to which the expression quoted above could refer. Hence, we hold that these words are not meaningless, but do refer to the act of 1862-63; 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) 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, nor to 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 1862-63, 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. St. at Large, 431. The section of the act relied upon is as follows: Section 3. “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 25, 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...