Bird v. The State Of Ga.

• Decision Date: 31 August 1853
• Docket Number: No. 9.,9.
• Citation: 14 Ga. 43
• Parties: Elijah Bird, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

14 Ga. 43

Elijah Bird, plaintiff in error. vs. The State of Georgia, defendant.

No. 9.

Supreme Court of the State of Georgia

AUGUST TERM, 1853.

Indictment for murder, in DeKalb Superior Court. Tried before Judge Hill, April Term, 1853.

This cause came up on exceptions to the decision of the Court on a motion for a new trial. The defendant having beentried and convicted of the offence of murder, moved for a new trial on the following grounds:

1st. Because no venire facias had been issued to the Sheriff to summon the grand jury who found the bill, or the regular panel of the petit jury who tried it. It appeared by evidence, that the grand and petit jury lists had been drawn and recorded, and a copy thereof given to the Sheriff, who had summoned them without a venire; and this fact was not known to the prisoner until after the trial.

2nd. Because the presiding Judge, observing that there were seven cases of murder on the docket, had, on the first day of the term, and before this case was called, directed the Sheriff to send out into the county, and summon citizens to be in attendance at the Court. They were not required to attend for any particular case, but generally to attend the Court.

3d. Because, when the prisoner was put upon his trial, and the regular panel was exhausted, without obtaining a jury, a list of those whom the Sheriff had summoned as above stated, was handed to the prisoner as a list of the tales jurors. Upon objection being made by the prisoner, that they had not been legally summoned, they were ordered by the Court to stand aside, and the Sheriff was directed to summon a panel of tales-jurors; when twenty of the former list were again summoned by the Sheriff and put upon the prisoner—he objecting to them.

4th. Because when, during the investigation of the case, the prisoner, in his defence, had offered evidence of former amity between him and the deceased, and of provocation on the part of the deceased, the Court permitted the State to introduce, in rebuttal, evidence of malice on the part of prisoner.

5th. Because, when the prisoner had introduced testimony to show that deceased had cut a certain wagon with an axe. (which was the origin of the quarrel resulting in the homicide) and the State, in rebuttal, had proven by a witness that he had afterwards examined the wagon, and found no marks of injury: and the prisoner offered other testimony to prove that deceased had cut the wagon; the Court refused to permit it.

The motion for a new trial was overruled by the Court— which decision is assigned as error.

Ezzard & Colquitt, for plaintiff in error.

Tidwell, Sol. General, for defendant.

By the Court.—Nisbet, J., delivering the opinion.

The grand jury that found the indictment; and the petit jury which was put upon the prisoner at the trial, were summoned by the Sheriff and returned without a venire. The question is, whether the want of the venire is ground for an arrest of the judgment, or for a new trial, motions for both having been made before the Court below and refused. At C. Lam the jury is summoned by a venire, and the Sheriff makes return of the writ, with his action under it. 1 Chitty's Crim. Law, 505 to 509.) Our Statute of 1799 has affirmed the C. Law, and requires the writ and a return thereon. (Cobb's N. D., 547, 548.) Our opinon, notwithstanding is, that the want of the venire is not such a defect as will vitiate the verdict and arrest the judgment—the trial in other respects, being according to law.

If growing out of the want of a venire, or coupled with that defect, there is anything going to show that the prisoner has not been tried by an impartial jury boni et legales homines, it would be a ground for a new trial. We are aware that in this opinion we are in conflict with American authority. (The People vs. McKay, 18 John R., 212. The State vs. Dozier, 2 Spear, 211. 1 Richardson, 188.)

These cases are not obligatory; they advise, but do not command: and as to the usage of C. Law, of placing a venire in the hands of the Sheriff, we find that there is sufficient in our statutes to authorize a departure from that. Judge Spencer, while arresting a judgment in the People vs. McKay, because there was a seal wanting to the venire, and therefore no venire, concludes his opinion, as if reluctant to yield common sense toa bare technicality, by saying, "we do not feel ourselves authorized to dispense with a process required by the Common Law, and also by the Statute, although we may not see much use in continuing it."

And the two cases from South Carolina are weakened in their authority by a conflict between them and the principles enunciated by the same Court, in The State vs. Massey, and The State vs. Baldwin, 2 Hill R., 379.

In these cases motions were made for new trials, and in arrest, on the grounds that the jury list had not been made from the Tax returns according to the act of 1799, and that several of the panel were not free-holders, entitled to vote according to the Constitution of South Carolina, as it was in 1799. These grounds were overruled by the Court of Appeals, because not taken before the Circuit Court, yet the Court proceed to give their opinion upon them. It is true that no question is mooted directly in regard to the necessity of a venire, but Mr. J. O'Neal, and through him, the whole Court, holds that the requirements of the Statute as to the mode in which the juries are made up, and as to their qualifications, are purely directory to public officers in the discharge of their duty; and if they fail to discharge it, it does not vitiate the array—nor is it any objection to the polls. The act, he further says, was not intended to secure any right, benefit or privilege to the defendant, but was merely to regulate the drawing of the jury in such way as to divide the duty of serving on the jury among the inhabitants of a district—and that he is not prejudiced, if the jury for his trial, are from the vicinage, (the district where the offence was committed) and have all the other legal qualifications. I do not see why the reasoning of this learned Judge does not apply with equal force to the requirement of the Statute, that a venire shall issue to summon the jury. Is that not also directory to public officers in the discharge of their duty? Was that intended to secure any right, benefit or privilege to the defendant; and can he complain, if the jury which tries him is from the vicinage, and has the legal qualifications; that they were not empannelled through the formality of a writ? Thereare other cases in the American books on both sides of the question—I do not think it necessary to notice them. Our judgment is founded on our own Statutes. From these we think it clearly demonstrated, that the right of the defendant to an impartial trial by jury, is as fully protected here, without the venire, as it is in England with it; and that the writ adds nothing here, to the security of that right. If these things be so, then this defendant has no right to complain. His complaint is not founded upon abuse, conception, partiality, or any tilling of that sort; but upon the fact that a legal right, to wit: the right to have the grand and traverse jury summoned by writ of venire facias has been denied to him. He is entitled to stand upon all his legal rights; and most willing are we, in a case involving life, to seize upon any right which the laws give, to rescue even him, too clearly a murderer, from the doom which we are satisfied he merits. We have, however, made up our minds, after great consideration, that the empan-neling of the juries after a summons without a venire, is not in Georgia, the violation of a legal right.

In England, those who are to serve on the grand and petit juries, are ascertained by law as a class—that is to say, the qualifications of jurors are determined by Law. When a jury is to be convened, the process of venire facias is awarded on the roll, which is a precept directed to the Sheriff, commanding him to cause to come a certain number of subjects, who are by Law entitled to serve as jurors. To compel attendance, upon awarding the venire in the Common Pleas, there issues the Habeas Corpora and Distringas Juratores; but in the King's Bench and Exchequer after the venire, they proceed upon the distringas alone. The names of the jurors are not given in the writ. No authority nominates to him the individuals to be summoned and returned. He is left to fill out the list himself from that body, from which jurors are, for the term, to be taken. The duty of summoning the jurors is one of some discretion, and great responsibility; therefore, and hence, too, the necessity of a return of the process. When executed, he returns the process with his actings thereon—that return embraces thenames of the jury summoned, and identifies the jury summoned with the jury which is empanneled, either as a grand or petit jury. (3 Bac. Abr. title Juries.) It is obvious enough, from these considerations, that it would be impossible to dispense with the venire and the return in England, without disordering the Judicial machinery, and endangering the purity of trial by jury. But how is it in Georgia? Here the whole matter is arranged and concluded by Law, and the Sheriff is merely a ministerial officer. The Law, through the action of Judicial functionaries, determines the individuals who at each term of the Court are to constitute the grand and petit juries. By the act of 1805, the Justices of the Inferior Court of the several counties, together with the Sheriff and Clerk, biennially, in the month of June, select from the books of the Receiver of Tax Returns, "fit and proper persons to serve as Grand Jurors." And if the selection is not made at that time, they are required to make it at or before the next Superior Court for the county, to be held thereafter. This is called revising the Grand Jury list, and this selection defines and fixes the body of citizens who are to constitute the...