State v. Israel Mercier

• Decision Date: 04 February 1925
• Citation: 127 A. 715,98 Vt. 368
• Parties: STATE v. ISRAEL MERCIER
• Court: Vermont Supreme Court

127 A. 715

98 Vt. 368

STATE v. ISRAEL MERCIER

Supreme Court of Vermont

February 4, 1925

January Term, 1925.

COMPLAINT for unlawful possession of intoxicating liquor. Plea, not guilty. Trial by jury in the Burlington city court Clarence P. Cowles, City Judge. Verdict and judgment of guilty. The respondent excepted. The opinion states the case. No error.

Judgment that there is no error in the proceedings and that the respondent takes nothing by his exceptions. Let execution be done.

J A. McNamara for the respondent.

A. Pearley Feen, city grand juror, for the State.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

This respondent, who was convicted in the Burlington city court of the illegal possession of intoxicating liquor, says that his conviction should be set aside because he was denied the full benefit of his constitutional right to a trial by jury.

While the right to a trial before an impartial jury is guaranteed by the organic law (Const. Vt. Ch. I, Art. 10 ), and while this right is to be held sacred, (Ibid, Art. 12 ), and is to be given effect according to the course of the common law (Plimpton v. Somerset, 33 Vt. 283), it does not follow that no change in the procedural requirements by which the enjoyment of this right is secured can be made without impairing the right. The term "sacred" as used in the Constitution means no more than the word "inviolate," which is found in the fundamental law of some of the states. It does not mean that the mode of listing and selecting the jurors shall forever remain unchanged. Clayton v. Clark, 55 N.J.L. 539, 26 A. 795; People v. Peete, 54 Cal.App. 333, 202 P. 51. It only means that the right itself shall be free from destruction or material impairment. Humphrey v. Eakeley, 72 N.J.L. 424, 60 A. 1097, 5 Ann. Cas. 929; State v. DeLorenzo, 81 N.J.L. 613, 79 A. 839, Ann. Cas. 1912D, 329.

Hence it is, that the Legislature has full authority to make reasonable laws regulating the mode in which the right shall be enjoyed, provided it does not materially impair the right itself. In re Marron, 60 Vt. 199, 12 A. 523.

The jury by which this respondent was found guilty consisted of twelve men selected and drawn in conformity to the provision of the statute, G. L. 1652. It is therein provided that the sheriff, a deputy sheriff, or other officer appointed by the court, shall select from the list of three hundred judicious men which the judge is required by G. L. 1651 to keep on file, the names of twenty-four persons from the towns designated by the judge; write each name on a separate slip of paper, and deposit the same in a proper receptacle. The judge or clerk is then to draw the names therefrom, one at a time, and the person whose name is so drawn, unless challenged, shall be a juror. Each party is given six peremptory challenges and the right to an unlimited number of challenges for cause.

The respondent insists that this method of securing the jury gives the officer too wide a latitude in selecting the names, and cites State v. Peterson, 41 Vt. 504, to sustain him. It is true that in that case Judge Wilson, arguendo, indulges in some animadversions on the method of drawing jurors in justice courts. They were wholly outside the necessities of the case. It was enough for the decision to hold that the respondent was entitled to a jury of twelve men. The criticism, then, was entirely obiter; and it is apparent that it was not taken very seriously, for, so far as the criticism went, we have gone on for the more than fifty years that have since elapsed, drawing juries in justice courts in exactly the same way. G. L. 1686.

The statute above referred to was recently before us in State v. Pilver, 91 Vt. 310, 100 A. 674, and we therein discussed questions somewhat cognate to the one here presented, and that case may be profitably considered in this connection.

But the respondent says that the statute gave him no adequate opportunity to exercise his right of challenge, which, he insists, is an essential element of his right to a jury trial. That a respondent must be accorded such an opportunity is undoubted. Without it, he is not given the full benefit of his constitutional right. A liberal, though not unlimited opportunity to examine the jurors drawn (State v. Bosworth, 86 Vt. 71, 83 A. 657), to test and consider their respective qualifications, to assert and exercise the right of challenge given him by the statute, is, no doubt, essential to the full enjoyment of a respondent's right to a jury trial. But there is nothing in the statute under consideration that expressly or by implication denies such an opportunity; nor does the record show that the proceedings below were so conducted as to deprive this respondent of it. Indulging the presumption of regularity, as we must, it is to be taken that he was accorded it.

The respondent's brief indicates that it may have been ruled below that the right of challenge was to be exercised at the very time a juror's name was...