Samuels v. State

• Decision Date: 31 December 1831
• Citation: 3 Mo. 68
• Parties: SAMUELS v. THE STATE.
• Court: Missouri Supreme Court

3 Mo. 68

SAMUELS

v.THE STATE.

Supreme Court of Missouri.

December Term, 1831.

ERROR FROM THE CIRCUIT COURT OF BOONE COUNTY.

M'GIRK, C. J.

The plaintiff was indicted for murder in the Ralls Circuit Court, at the February term, 1830. At that term the prisoner was arraigned and pleaded not guilty. He then applied for and obtained a change of venue to the Boone Circuit Court. When the cause came there, the change of venue was deemed incomplete, and the court of Boone sent the prisoner back to Ralls court. At the Feb. term of that Court 1831, the cause was continued till the first Monday in April, to which time the court adjourned their general term, to hold a special session in continuance of the term of Feb., at which time the court opened and amended the record of the change of venue, and sent the prisoner back to Boone county to be tried. At the June term of the Circuit Court for Boone county, 1831, the court proceeded to try the prisoner, and having a jury empanneled on Saturday evening, the trial was not ended. The judge made an order to the sheriff to adjourn the court till Monday morning, and to proclaim that on Monday a special term of the court would be holden in continuance of that term to finish the trial of the prisoner; which proclamation was made. On Monday the court was holden accordingly, and on Tuesday the trial resulted in a verdict of guilty. Sentence of death was pronounced. The same Monday was the day appointed by law for holding Court in Howard county, by the same Judge. The prisoner has brought his cause to this court, by a writ of error, and assigns on the record several errors, some relating to the caption of the judgment.

The first is, that it does not appear that the Judge who held the court, had power to hold that court, not having been assigned to do so. There is nothing in this objection. The Constitution of the State, and the statute organizing the Circuit Courts, are the Judges' warrant to hold courts, and take jurisdiction on capital cases.

The second objection is, that it does not appear by the record, that a venire issued to the sheriff of Boone county to summon a jury, nor does does it appear who summoned the jury in the case. Some other minor objections were made to the indictment, but were properly abandoned on the argument.

The points assigned for error, and relied on in the argument, are stated as follows, to-wit: First. There was no venire to the sheriff of Boone county, to summon the jury that tried the prisoner. Second. The proceedings of the Ralls Circuit Court, had on the first Monday in April, are void, there being no legal adjournment to that time, and no general law authorizing a court to be held at the time. The adjourned term of the Boone Circuit Court at which the prisoner was tried, was held without law, and the proceedings had therein are void.

We will proceed to consider the first point. Is it necessary by laws of Missouri, that a venire facias should issue to the sheriff to summons a jury before he can proceed to do so? Must it appear by the record that a venire was awarded? Mr. King, for the plaintiff, insists that it was in general necessary at common law, that a venire in criminal cases should be made out to the sheriff before he could summon a jury, and that the award thereof should appear on the record. To prove this, he cites 18 Johnson's R., 212, and the authorities there cited. We have not got the book before us, but if we recollect correctly, the decision is, that a venire is necessary in New York; though they say they cannot see much use in it at this day. To support this point, the counsel have also cited 1 Chit. Crim. Law, 50, C; 3 Bac. title Jurors, letter B. 1. These authorities prove, that by the course of proceeding at common law, some of the English courts did use the venire, and others did not. Both the books say, that justices of goal delivery did not use the writ of venire. That Justices of the Sessions used no venire. Chitty says, that it was laid down by Lord Ch. J. Treby, to be the law with regard to courts of goal delivery. That before the coming of the Judges, they issue a general command in writing, under their hand and seal, to the sheriff, commanding him to return a jury at the time and place of holding court; which the sheriff executed, and his return thereto was, that he had executed the precept with the panel thereto annexed. 1 Chit. Crim. Law, 515. This panel is simply filed in court, and the sheriff's name is not signed thereto, and a jury is taken therefrom as necessity may require. Ibid. 507. In the courts of Oyer and Terminer, the justices use no venire, but make their command in writing, under their hands and seals, to the sheriff to return a jury. 3 Bac. 728, title Jury, letter B. 1. And in page 728 of that book, it seems the course is to use the venire in the Exchequer and K. B. But in the K. B. if the first venire failed of effect, the sheriff made up the deficiency, by the bare verbal order of the court. It is further laid down in 1 Chit. Crim. Law, 508, that when the first panel under the general precept is exhausted, the justices of goal delivery award a new panel ore tenus, returnable instanter. This doctrine is supported by a case in Foster's Reports, 25 and 64. This appears to be the common law doctrine of England, adopted in Missouri in the year 1816. We ask which of those English courts is our Circuit Courts most like, and which is it bound to follow? We are of opinion it is bound to follow neither of them. We are of opinion that the doctrine of venires as known to the common law, never was the law of this country. The statute adopting the common law, forbids the introduction of all such portions of it as may conflict or be inconsistent with the statutes of the country then in force. In 1811, the Legislature passed an act, which says, “the several courts before whom juries are required, are hereby authorized to direct the sheriff to summon a sufficient number of persons to perform the duties of jurors. Section second provides a penalty to be imposed on persons being summoned and failing to attend. When this statute was passed, the common law was not the law of this land. At that time no question of this kind could arise. The general practice of the courts was to direct the sheriff from time to time ore tenus, to summon a jury as occasion might require. Thus stood the law and the practice under it in 1816, when the common law was adopted. The practice still continued the same, with only a few exceptions, till 1825, the time of the passage of the present jury law; and since that we are not aware of any alteration in the practice. The act of 1825 is nearly the same in terms as that of 1811. See Rev. Code, 466. It is an act entitled an act concerning grand and petit jurors, the first section of which provides: That the several courts before whom jurors are required, are hereby authorized to direct the respective sheriffs to summon a sufficient number in persons to perform the duties of jurors. See Revised Code, Laws of Missouri, 466. The act says that the courts may direct the sheriff to summon jurors. It does not say how the direction is to be given, whether by an order made of record to stand as a general order, or by a writ under the seal of the court, called a venire facias, or by an order under the hands and seals of the judges, or by a bare command ore tenus.

We perceive no reason why either of these modes would not be good. If the Judge, sitting in his place as a Judge, gives a verbal order or command to the sheriff to summon a jury to try a prisoner, the sheriff is bound to obey. There can be no possible use in having the command entered of record. But it is argued that there is a necessity to have entered on the record the command to the sheriff to return a jury, because if the jury should be returned by any other person than the sheriff, the prisoner might not have an impartial jury returned by an impartial officer, and because in this case it does not appear who returned the jury, it is error. By the jury act of 1825, it is the general duty of the sheriff to summons juries, when directed by the court to do so. But by the other statutes, the court may direct the Coroner in certain cases to summon the jury. In this case it appears by the record, that a good and lawful jury came, and in the presence of the prisoner were sworn and entered on the trial. And no objection being made by the prisoner to the returning officer or the array, we must suppose he was satisfied with both. If the fact was that the coroner returned the jury, or if the sheriff was not impartial, there is a mode of taking advantage of those things by challenging the array, before the trial is gone into. 1 Chitty, 515 and 548. The challenge to the array, for partiality in the returning officer must be made in writing, ibid. 547. The challenge may be demurred to and thus become a part of the record, ibid. 548. But every objection to the sherifi, and we presume to every other officer returning a jury, must be taken before the trial commences, and cannot be taken advantage of in arrest of judgment, ibid. 515, 1 Leach 101. For these reasons we hold no venire is necessary by our laws, consequently none need be awarded on the roll; and if a venire were necessary, yet we would hold that the English entry of ““thereupon let a jury come,” is unnecessary where the prisoner pleads not guilty, for by the constitution, the prisoner is entitled to a jury and the award of a vsnire, or “thereupon let a jury come,” could make his right to a jury trial no more certain nor strong than it would be without it. If it is true, as the prisoner's counsel contend it may be, that some other person than the sheriff summoned the jury, he has lost nothing, for there was a time when, and there is a mode of taking advantage of that, if it existed, and if the prisoner did not do so, he cannot now arail himself of it. The first point is overruled.^(a)

The second objection is...