Commonwealth v. Chung

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtKNOWLTON
Citation71 N.E. 292,186 Mass. 231
Decision Date23 June 1904

186 Mass. 231
71 N.E. 292


Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1904.

Appeal from Superior Court, Suffolk County.

Wong Chung and others were convicted of crime, and they bring exceptions. Overruled.

John [186 Mass. 232]D. McLaughlin, Second Asst. Dist.
Atty., for the commonwealth.

Frank Paul, for defendants.


The defendants, after a conviction of murder in the second degree, filed a motion for a new trial on account of the alleged disqualification of one of the jurors. It appeared at the hearing that the juror enlisted in the army of the United States in the War of the Rebellion, and that the record in the office of the adjutant general shows him marked as a deserter in the year 1862. It was admitted, at the hearing on the motion that this entry in the record is true. It was also shown that on June 22, 1868, he was convicted of breaking and entering a shop and stealing goods therein, and was sentenced to imprisonment in the State Prison for the term of three years. On July 30, 1870, he was released from imprisonment under this sentence by the Governor, with [186 Mass. 233]the advice and consent of the council, on condition that, if he should be convicted of any crime punishable by imprisonment before the expiration of the sentence, he should serve the remainder thereof.

The defendants contend that he was disqualified to serve as a juror because of his desertion, which, under Act Cong. March 3, 1865, c. 79, § 21, 13 Stat. 490, deprived him of his rights as a citizen of the United States and rendered him incapable of holding any office of trust or profit under the United States. They contend, under Rev. Laws, c. 176, § 1, that only persons qualified to vote for representatives of the General Court can serve as jurors, and that, under article 3 of the amendments to the Constitution of Massachusetts, none but citizens of Massachusetts can vote for members of the General Court, and that, having lost his rights as a citizen of the United States, he cannot exercise the rights of an elector as a citizen on Massachusetts. See Opinion of the Justices 122 Mass. 594; Rev. Laws, c. 1, § 1.

[71 N.E. 293]

We are of opinion that the last part of this contention is not well founded. In the first place, the statute depriving one of his rights of citizenship under the government of the United States does not take effect upon any person until he has been legally adjudged guilty of desertion by a competent tribunal. This is a highly penal statute, and it would be dangerous to attempt to give it effect otherwise than upon sufficient proof, in a proceeding regularly inauguarated and properly conducted to ascertain the facts. It has often happened that a soldier has been entered on the rolls as a deserter when there was no real desertion. The disqualification under the statute first arises when the soldier is tried and found guilty of desertion. This is the doctrine stated in State v. Symonds, 57 Me. 148. The admission which was made at the hearing upon the motion for a new trial, if competent, should be considered only upon the question of the juror's character and his fitness to serve in a trial. In regard to the circumstances of the desertion-whether it was entirely without excuse, or with palliating conditions-nothing appears. In the exercise of his discretion, in passing upon the motion the judge would give the admitted facts such effect as they ought to have.

We do not find it necessary to decide whether, if the juror [186 Mass. 234]had been found guilty of desertion, his loss of his rights as a citizen of the United States would have deprived him of his previously existing right as a citizen of Massachusetts ot vote for members of the General Court. It is at least doubtful whether this result would have followed. The failure of the defendants to object to the juror until after the verdict will be considered in connection with the other branch of the case.

The defendants also contend that the juror's conviction of a felony nearly 36 years before the trial of their case is a disqualification which entitles them to a new trial as a matter of law. At common law, this would be a disqualification, even after the lapse of so long a time. 4 Black's Com. 349, 350, 352, 363; 3 Bacon's Abr. (6th Ed.) 254. In this commonwealth the qualifications of jurors are prescribed by statutes which cover the whole subject and supersede the common law. ‘A person qualified to vote for representatives to the General Court shall be liable to serve as a juror, except that the following persons shall be exempt.’ Following this statement in Rev. Laws, c. 176, § 1, is a long list of public officers and others who are exempt from service. The provisions for the preparation and publication of the list of jurors in cities and towns are found in sections 4-9 of this chapter. In Boston this list is to be prepared by the board of election commissioners, in other cities by the registers of voters, and in towns by the selectmen. This list is to contain the names ‘of such inhabitants of the city or town, of good moral...

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5 cases
  • Beasley v. State, 4 Div. 313
    • United States
    • Alabama Court of Appeals
    • August 13, 1957
    ......Ortiz, 320 Ill. 205, 150 N.E. 708; Higgins v. Commonwealth, 287 Ky. 767, 155 S.W.2d 209--dictum; Berg v. Griffiths, 126 Neb. 235, 252 N.W. 918, vacated on other grounds 127 [39 Ala.App. 188] Neb. 501, 256 ... Regardless of the doctrines in other jurisdictions, such as Commonwealth v. Wong Chung, 186 Mass. 231, 71 N.E. 292, 1 Ann.Cas. 193; Sturrock v. State, 229 Ind. 161, 96 N.E.2d 226; Raub v. Carpenter, supra (dictum); or of our cases upon ......
  • Com. v. Fudge
    • United States
    • Appeals Court of Massachusetts
    • July 16, 1985
    ...diligence...." (emphasis supplied). Commonwealth v. Zakas, 358 Mass. 265, 268, 263 N.E.2d 446 (1970). Cf. Commonwealth v. Wong Chung, 186 Mass. 231, 236-237, 71 N.E. 292 (1904); Commonwealth v. Fidler, 6 Mass.App. 28, 40, 371 N.E.2d 1381 (1978), S.C., 377 Mass. 192, 385 N.E.2d 513 (1979). T......
  • Fratantonio v. Atlantic Ref. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 1, 1937
    ...the rule as to challenges of jurors (Commonwealth v. Dorsey, 103 Mass. 412), the qualifications of jurors (Commonwealth v. Wong Chung, 186 Mass. 231, 71 N.E. 292, 1 Ann.Cas. 193; Commonwealth v. Worcester, 3 Pick. 462), and the weight to be given to evidence (Holmes v. Hunt, 122 Mass. 505, ......
  • U.S. v. Estrella, 96-1625
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 5, 1996
    ...list the name of a former criminal, if they find him to be of good moral character and otherwise suitable. Commonwealth v. Wong Chung, 186 Mass. 231, 71 N.E. 292, 293 The right of the trial judge to dismiss an ex-felon under section 8 appears to be a safeguard, allowing the trial judge to d......
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