Commonwealth v. Brown

• Decision Date: 27 November 1888
• Citation: 18 N.E. 587,147 Mass. 585
• Parties: COMMONWEALTH v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 585

18 N.E. 587

COMMONWEALTH v. BROWN.

Supreme Judicial Court of Massachusetts, Nantucket.

November 27, 1888

Indictment against John F. Brown for forging and uttering writings, each described as a "discharge for money," all of substantially the following tenor:

"NANTUCKET, Oct. 3d, 1884.

"Town of Nantucket to H. Gardner, Dr
To 12 hours' work setting fence on Palpis road, at J.M. Folger's cranberry bog	$ 3 00
New posts and nails furnished	11 00
	------
	$14 00

"Rec'd payment, HARRISON GARDNER."

COUNSEL

H.W. Chaplin and L.E. Griswold, for defendant.

A.J. Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.

OPINION

KNOWLTON J.

The indictment in this case contains 22 counts, some charging the defendant with forging, and others with uttering, discharges for money, payable from the treasury of the town and county of Nantucket. The defendant pleaded in abatement to the indictment, and upon the facts which appeared at the hearing he asked the court to rule "that, by reason of bias and interest, a grand jury drawn and made up from the inhabitants of the town and county of Nantucket was not competent to make a presentment for crimes against the county or the town treasury." The court refused so to rule, and ruled that the presentment was valid. We may assume that the defendant is right in his contention that objections to an indictment on account of the disqualification of a grand juror may be taken when the defendant is first called upon to plead to the indictment; for, under our practice, it commonly happens that he has no opportunity to make his objection earlier. See Com. v. Parker, 2 Pick. 549, 559; State v. Symonds, 36 Me. 128; U.S. v. Hammond, 2 Woods, 197. At a later stage of the proceedings the defendant made a similar objection to the jury of trials, which was also overruled. These questions, founded on the alleged interest of the jurors as residents of the town and county of Nantucket, are substantially the same in relation to the grand jury and to the traverse jury. The general rule, that judges and jurors should not be interested in a controversy which they are called upon to settle, is founded upon familiar principles of justice. But there are some kinds of interest which are too minute and too remote to be regarded. Every citizen of the commonwealth is interested in the enforcement of the laws. But if that interest disqualified him from sitting as a juror, or otherwise participating in a trial, no criminal could be punished. From the necessity of the case, we trust the integrity and sense of justice which most men possess, so far as to believe that they will not be improperly influenced by an interest of this kind, which they have in common with the whole community. In the case at bar, the inhabitants of Nantucket had no direct pecuniary interest in the proceedings. The town and county treasury could not be in any way affected by the result of the prosecution. The judgment which might be rendered could not be used as evidence in a subsequent civil suit. They had no interest different in kind from that of all the people of the commonwealth. We by no means suggest that a victim of a crime should ordinarily be permitted to sit as a juror to try a person accused of committing it; for his feelings would be likely to be so aroused as to render him unfit for such a service. His relation to the matter under investigation would naturally lead him to form an opinion as to the guilt of the defendant, or would induce bias or prejudice; and, if this appeared, he would at once be set aside as disqualified to serve as a juror. But the crimes charged in this indictment were not against any of the persons who were upon the jury. They were committed against the town or county of which the jurors were inhabitants; and the bias, prejudice, or other kindred feeling, which might be expected in an individual who had suffered grievous wrong, would not be likely to exist in reference to a crime against the public treasury. Some of the inhabitants might be so far affected in their feelings as to be unfit for jurors. In respect to the traverse jurors, the defendant could have protected his rights in that particular by asking for an examination of them before they were impaneled. In regard to the grand jury, it is always possible that some of the jurors will be subject to bias, or will have formed an opinion in some of the numerous cases which commonly come before them. That possibility is contemplated in the statute, which prescribes the form of the oath to be administered to them. Pub.St. c. 213, § 5. But the function of that jury is merely to present an accusation for trial, and it may be presumed that one conscious of interest or bias in a particular case would refrain from acting in it. It should not be held that mere inhabitancy unfits one for sitting as a juror in an ordinary prosecution of an offense against the town in which he lives. A direct financial interest stands on somewhat different grounds. Clark v. Lamb, 2 Allen, 396; Hawes v. Gustin, Id. 402; Hush v. Sherman, Id. 596. But it has often been held that the legislature may provide that, if very slight, it shall not disqualify one from acting as a judge or juror. Com. v. Ryan, 5 Mass. 90; Hill v. Wells, 6 Pick. 104; Com. v. Emery, 11 Cush. 406; Com. v. Reed, 1 Gray, 472; State v. Batchelder, 6 Vt. 479; Diveny v. Elmira, 51 N.Y. 512; State v. Williams, 30 Me. 484. See Pub.St. c. 160, § 13; Id. c. 161, §§ 4-6, 9, 11; Id. c. 170, § 38. And the legislative intention that a slight financial interest shall not disqualify a juror is readily inferred, where otherwise there would be a failure of justice. Com. v. Ryan, ubi supra; Hawes v. Gustin, ubi supra; Com. v. Burding, 12 Cush. 506; Com. v. McLane, 4 Gray, 427; Com. v. Worcester, 3 Pick. 461; State v. Intoxicating Liquors, 54 Me. 564. In Connecticut v. Bradish, 14 Mass. 296, a civil suit brought by the state of Connecticut to foreclose a mortgage, it was held, under the law prohibiting interested persons from testifying, that an inhabitant of that state was not an incompetent witness. In State v. Batchelder, 6 Vt. 479, it was decided that a justice of the peace might try a criminal case in which the fine to be paid upon conviction went to the town where he lived; and in Middletown v. Ames, 7 Vt. 166, it was said that the rule applied equally to jurors, and it was held that a suit to recover for a breach of a recognizance might be tried before jurors from the town to which the fine would have gone, had there been a conviction in the original case. In State v. Wells, 46 Iowa, 662, it was held to be no objection to a juror that the trial was for a violation of an ordinance of his own city. Where a municipality has no direct pecuniary interest in a trial, but only such an interest as might result from the commission of an offense against its property, neither our legislature nor the courts have been accustomed to treat its interest as affecting the qualifications of its inhabitants to sit as jurors. Statutes have been passed removing the disqualification of jurors in certain criminal cases, which may affect pecuniary interests. Pub.St. c. 170, § 38, covers cases where the fine or forfeiture goes into the treasury of the county, city, or town, and it was probably thought that in others like the one at bar there was no such interest as made it necessary to include them. See Phillips v. State, 29 Ga. 105; Doyal v. State, 70 Ga. 134. Our statutes provide that in certain cases criminal trials may be had in counties other than that in which the offense was committed. Pub.St. c. 11, § 27; Id. c. 150, §§ 24-26; Id. c. 202, §§ 9, 10, 31; Id. c. 210, § 7; Id. c. 213, §§ 19-24. But this is not one of those cases, and the indictment in it could have been found, and the trial could have been had, in no other county than Nantucket. We are of opinion that our statutes must be held to be a legislative declaration that jurors residing in Nantucket, if otherwise unobjectionable, were competent to sit in the trial of it. The same considerations which induce us to hold that the inhabitants were not disqualified from sitting as jurors apply with still greater force to the defendant's contention that the officers of the town and county were disqualified from acting in relation to the drawing and summoning of the jurors.

The defendant also asked the court to rule that the indictment was bad, and that the traverse jurors could not sit to try it, because the meetings of the inhabitants of the town at which the jury-list was revised, and...