Eastman v. Holt

• Decision Date: 14 September 1897
• Parties: EASTMAN v. HOLT.
• Court: West Virginia Supreme Court

31 S.E. 259

43 W.Va. 599

EASTMAN v. HOLT.

Supreme Court of Appeals of West Virginia.

September 14, 1897

Additional note filed. For opinion, see 27 S.E. 883.

BRANNON, J.

When I wrote the above opinion, at Charlestown, I was interrupted daily by arguments of counsel, and did not have access to authority. The importance of the case and the division of the court seem to justify the addition of this note.

As to the point that the indictment is void because the court excused grand jurors because they had formed or expressed an opinion, what I said above I find justified by further examination of authority. Whart. Cr. Pl. § 346, says "It is a good cause of challenge to a grand juror that he has formed or expressed an opinion as to the guilt of a party whose case will probably be presented to the grand inquest." In the Pennsylvania case of Com. v. Clark, 2 Browne, 325, on full argument and consideration of Chief Justice Marshall's rule in the great Burr treason trial, a defendant was allowed a challenge, after jury was sworn, for favor, in that he had expressed an opinion of the prisoner's guilt. In State v. Bradford, 57 N.H. 198, it was held that the court may excuse grand jurors for reasons appearing to it satisfactory, and the exercise of its discretion will not be reviewed. In U.S. v. Gale, 109 U.S. 65, 3 S.Ct. 1 Justice Bradley said, as I stated above, that there was a distinction between the allowance of qualified and disqualified jurors, adding that "disqualified jurors upon the panel may be supposed injuriously to affect the whole panel; but if the individuals forming it are unobjectionable, and have all the necessary qualifications it is of less moment to the accused what persons may have been set aside or excused. The present case is of the latter kind. No complaint is made that any of the grand jurors who found indictment were disqualified to serve, or were in any respect improper persons. It is only complained that the court excluded some persons for improper causes, because they labored under the disqualification created by the 820th section of the Revised Statutes, which is alleged to be unconstitutional. It is not complained that the jury actually impaneled was not a good one, but that other persons equally good had a right to be placed on it."

As bearing on the contention that the excusing of jurors vitiates the indictment, and also the claim that the action of the county court in making a list for grand jury service is final, and that the circuit court can for no cause inquire into qualifications, I cite People v. Leonard, 106 Cal. 302, 39 P. 617, holding that the court may go into qualifications of those drawn as grand jurors, excuse some and summon others from bystanders, and that list is not final. I quote from the case of U.S. v. Jones, 69 F 976: "The real contention of the defendant is that the court had no power to excuse any grand juror for any cause whatever, unless he came within the disqualification or exemption mentioned in the statute. *** In other words, the court had no authority to excuse any juror of its own motion unless he was a minor, alien, an insane person, or prosecutor, *** and that the statute furnished the only guide for the action of the court. If the first position of the contention is correct, then it would follow that, if the accused whose cause was to come before the grand jury had been on the list drawn from the jury box, the court would have been compelled to accept him as a grand juror, and to have allowed him to act in all cases except his own. If twelve of the grand jurors had testified that they had formed and expressed opinions that the defendant was guilty, and that they should vote in favor of indictment without further evidence, the court would have no power to excuse them, or either of them. If it was brought to the attention of the court, in a reliable manner, that one or more of the jurors had offered, in advance of being sworn, to sell his vote for any sum of money to either party, the court would have no power to excuse the juror. These illustrations are sufficient to show the absurdity of the defendant's...