Commonwealth v. Walsh

• Citation: 124 Mass. 32
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 27 February 1878
• Parties: Commonwealth v. John H. Walsh & another

124 Mass. 32

Commonwealth v. John H. Walsh & another

Supreme Court of Massachusetts

February 27, 1878

Argued September 4, 1877 [Syllabus Material]

Suffolk. Indictment for receiving stolen goods. At November term 1876 of the Superior Court, the defendants, when called for trial by jury, filed the following plea or challenge to the array of the petit jury:

"And now come the said John H. Walsh and Rosanna Walsh, in their proper persons, when the jury is about to be empanelled to try the issue found on said indictment, and say that the said jury is an illegal jury, and each juror drawn is not a legal juryman, and not competent to serve otherwise:

"First. Because they were not impartially drawn by lot from the whole body of adult male citizens of the county of Suffolk, but from a partial body of persons, from which body had been first excluded divers adult male citizens of said county of Suffolk, fit and competent to serve as jurors, and who should have constituted a part and parcel of the body of citizens from whom the jurors were drawn; and after said persons had been selected from this imperfect body, divers adult male citizens were arbitrarily expunged and wrongfully omitted without right and without authority of law; and all this they are ready to verify.

"Second. Because said jury is not a legal jury of the county of Suffolk, in this, to wit: That when, by law, it is required that jurors shall be impartially drawn by lot from the whole body of male adult citizens of said county of Suffolk, the gentlemen comprising this jury were not impartially drawn by lot from the whole body of male adult citizens of the said county of Suffolk, but, contrariwise, were selected by design, and were also selected and drawn not from the whole body of adult male citizens, but from a lesser number of persons comprising not more than one fifth part of the whole body of adult male citizens of said county; and, furthermore the prisoners aver that, after said selecting, divers names of adult male citizens of the county of Suffolk, competent and fit to serve as jurors, were illegally, and without authority of law, struck off and omitted from the list; and this the defendants are ready to verify; and so the prisoners say that said illegal jury is not a legal jury, but a packed jury; and this they are ready to verify."

To this the attorney for the Commonwealth filed the following replication:

"And thereupon Heman W. Chaplin, assistant district attorney, who prosecutes for said Commonwealth in this behalf, says that by reason of anything in the said pleading by said John H. and Rosanna Walsh alleged, the said Commonwealth ought not to be precluded from prosecuting said indictment against the said John H. and Rosanna Walsh, because he says that:

"First. Said jury was impartially drawn by lot from the whole body of the adult male citizens of the county of Suffolk, fit and competent to serve as jurors.

"Second. Said jury was not selected by design from the whole body of adult male citizens of the said county of Suffolk, but was drawn impartially by lot, as aforesaid, from the list of jurymen legally and properly made up by the proper authorities of the cities of Boston and Chelsea, Winthrop and Revere, in the said county of Suffolk.

"And this the said Heman W. Chaplin is ready to verify. Wherefore he prays judgment, and that the said John H. and Rosanna Walsh may be required to go before said jury."

Upon the issue of fact thus raised, the defendants claimed a trial by jury. But Rockwell, J., ruled that the judge without a jury was the proper tribunal to try that issue, and proceeded to try it; and to this ruling and proceeding the defendants alleged exceptions.

At the trial upon the issue aforesaid, it appeared that venires had been issued on September 25, addressed to the constables of the cities and towns respectively, for thirty-six jurors from the city of Boston, four jurors from the city of Chelsea, and one juror each from the towns of Winthrop and Revere.

The defendants called as a witness the city clerk of Boston, from whose testimony and from the records produced by whom it appeared that the last list of jurors added to the box from which the jurors in Boston were drawn was prepared and accepted as follows: In January, 1876, an order was passed by the board of aldermen and approved by the mayor, "that the list of jurors in this city who are qualified to serve in the several courts of the county of Suffolk be revised by this board, and be posted in the court-house and city hall, and be thereafterwards submitted to the common council for revision and acceptance pursuant to law." After the passage of this order, the city clerk, acting as clerk of the board of aldermen, but not in their presence, took out of the box the names of persons who had died or removed from the city, and then reported to the board of aldermen the further number of jurors required, and gave to each alderman the list of voters in the different wards of the city, requesting each alderman to mark a certain number of names in certain wards. Each alderman did so, and delivered the list so marked by him to the clerk. As soon as the names were selected by each alderman, a printed list of all the names so selected was made by the clerk, and on March 28 was posted in the court-house and in the city hall. The list, so prepared and posted, was revised and accepted on April 10 by the board of aldermen, and on April 14 by the common council.

The defendants contended that the jury was not a legal jury, because the provisions of the Gen. Sts. c. 132, for the selection of jurors, were unconstitutional; because the selection was not made from all the inhabitants of the city of Boston, computing by the then last census, but from the voting list; because names were taken out of the jury box by the city clerk; and because the list posted was prepared by the aldermen acting separately, and not by the whole board of aldermen. But the judge ruled that, in the absence of fraud, (which he found not to exist as a fact,) the jury had been legally and properly drawn, summoned and returned, and was fit to be empanelled to try this case. To this ruling the defendants alleged exceptions.

The indictment contained seven counts for distinct offences. Each defendant, at the calling of the jury empanelled, claimed more than two peremptory challenges. But the judge ruled that each defendant was entitled to but two such challenges, and refused to allow more, and the jury was empanelled accordingly; and to this ruling and refusal the defendants, having been found guilty, alleged exceptions.

Briefs were submitted in September, 1877, upon the points above stated, and afterwards, at the request of the court, upon the question whether the facts proved would support a challenge to the array.

Exceptions overruled.

J. B. Richardson, for the defendants.

C. R Train, Attorney General, & W. C. Loring,...