Commonwealth v. Wong Chung

• Decision Date: 23 June 1904
• Citation: 71 N.E. 292,186 Mass. 231
• Parties: COMMONWEALTH v. WONG CHUNG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 231

71 N.E. 292

COMMONWEALTH v. WONG CHUNG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1904

COUNSEL

John D. McLaughlin, Second Asst. Dist. Atty., for the commonwealth.

Frank Paul, for defendants.

OPINION

KNOWLTON C.J.

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 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.

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 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 character, of sound judgment and free from all legal exceptions, not absolutely exempt from jury service, as they think qualified to serve as jurors.' First, the members of the board must use their judgment in determining what persons possess the statutory qualifications. In considering the qualifications of a person who has been convicted of a crime, that fact naturally would be deemed important on the question whether he is of good moral character. But in this commonwealth it is not the law that persons convicted of crime shall be permanently deprived of their civil rights. Our legislation, more humane and charitable than the law of early times, recognizes the possibility of repentance and reformation. A person convicted of a crime, however heinous, is not incompetent to testify in court, although the fact may be shown to affect his credibility. Rev. Laws, c. 175, §§ 20, 21. Outlawry and attainder are no parts of our system. Unless by special provision of statute in a particular case, conviction of crime does not disqualify one from holding office or exercising other civil rights after he has suffered punishment, if he is trustworthy and possessed of the other necessary qualifications. Returning to this statute, there is nothing to prevent the board from putting upon the jury list the name of a former criminal, if they find him to be of good moral character and otherwise suitable. When the list is complete, it is posted for 10 days, and submitted for revision and acceptance to the board of aldermen in cities, or the single legislative board if there is one, and to the voters in town meetings in towns. The statute recognizes the fact that the list may contain the names of persons who previously had been convicted of crime, in the provision in section 5 that the revisory board may remove therefrom the names of such persons, unless they have been pardoned on the ground of innocence of such crime. This allows, but does not require, a previous conviction of crime to be made a reason for the removal of a name, even if the person has afterwards lived for 40 years without reproach, and is of good moral character.

Section 8 provides differently for a different condition, as follows 'If a person whose name has been placed in the jury box is convicted of a scandalous crime or is guilty of gross immorality, his name shall be withdrawn therefrom by the board of selectmen, and he shall not be returned to serve as a juror.' This relates to the case of one who is shown by the facts stated not to be of good moral character after his name has been placed in the jury box. In such a case the name must be removed, while in the case of a person who had been convicted before the list was made up, and who was put upon the list presumably because he was thought to be of good moral character, the name may be removed, or not, at the option of the revisory board, unless he is pardoned on the ground of his innocence. We think these statutes make it plain that one who is found to be of good moral character by the board...