State v. Ward
| Decision Date | 29 May 1888 |
| Parties | STATE v. THOMAS WARD |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1887 [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
The result is that the respondent takes nothing from his exceptions, and the cause is remanded.
Bates & May and Harry Blodgett, for the respondent.
I. The motion to quash was properly overruled. It is based upon matters not appearing upon the record. It rests wholly on extrinsic facts, which could only be proved by parol evidence. No plea can be made to, and no issue joined upon, such a motion. It is an inappropriate mode of bringing such facts before the court. It should be founded upon facts appearing of record, or admitted and shown by the plaintiff's own proofs. State v. Haynes, 35 Vt. 565; State v. Intoxicating Liquors, 44 Vt. 208; Waterford v. Brookfield, 2 Vt. 200; Culver v. Balch, 23 Vt. 618; Barrows v. McGowan, 39 Vt. 238; Landgrove v. Plymouth, 52 Vt. 503.
II. The plea in abatement was clearly insufficient. It is lacking in the certainty required in such a plea. It is also defective in presenting several issuable facts, disjunctively, by the use of "or" as pointed out in the brief for the prosecution. Such pleading would multiply indefinitely the issues involved in a case, and lead to confusion and perplexity, instead of eliminating all extraneous matter, and narrowing the pleadings to a single determinative issue, which is the crowning merit of common-law pleading. The counsel for the respondent do not seriously contend that the plea is technically sufficient when judged by the rules of the common law, but contend, that strict technical accuracy should not be required; that it should be sufficient if the plea states the objection in plain, unambiguous language, and cite authorities in support of such rule. But the common-law rules have never been relaxed in this State, except by force of statute; and we have no statute relative to this class of pleading. The authorities cited are mostly from states in which the common-law practice does not prevail, and are not authority in this State. But it is unnecessary to give much attention to the technical form or substance of the plea. The counsel on both sides desire the opinion of the court upon the facts in substance, set forth in the plea and affidavits. The question thus presented is of practical importance, and has been considered carefully, although the case might be disposed of on the views already expressed. On the facts embodied in the plea and affidavits, the question is raised, whether in organizing and directing the proceedings of the grand jury, the County Court has any discretionary power to excuse jurors for causes not especially provided for in the statute, and to fill their places by ordering the sheriff to call talesmen. This was in effect what was done and is complained of by the respondent. This assumes that Hoffman was not disqualified by the Act of 1884. The prohibition of service by that Act is for two years from the time the juror was first drawn. A little more than two years had elapsed since the juror was before drawn, but not since he before served. There was a reasonable question whether the statute did not mean that two years should intervene between the terms of service.
When this statute was called to my attention, I thought it was safer to excuse the juror, than to incur the risk of his being held disqualified under that Act, and so excused him and caused his place to be filled by a talesman (called by the sheriff), who was qualified to act as grand juror, if properly returned as such. I then thought as we now hold, that the statute, in terms, did not disqualify Mr. Hoffman from serving. Hence, if the court had no discretionary power in excusing him and ordering the sheriff to call a talesman, the action was erroneous. The prosecution contend that the objection to the discharge of Hoffman, and to the substitution of Ellis, relates only to the technical method of selecting the latter, and not to his competency. Such is the objection. It is nowhere alleged in the plea, nor stated in the affidavits which are referred to, and made a part of the plea, that Ellis was incompetent to act in the capacity of a grand juror, if properly selected and returned to the court. The prosecution has cited a number of authorities which hold that such an objection, by one bound up to the County Court to answer to such things as may be presented against him by the grand jury, is waived, if not taken advantage of in the organization of the grand jury; that the respondent should have challenged the grand juror or the array, when Hoffman had been discharged and Ellis substituted in his place. The decisions cited were controlled by statute, in some cases, and some cases are claimed to rest on the common law.
But such a practice has never prevailed in this State, and has never been generally understood to exist. We think the better opinion is, that it did not exist at the common law. Thompson & Merriam on Juries, s. 507, et sequens. A passage in Hawkins' Pleas of the Crown seems to support the existence of the right (2 Hawk. P.C. 25, s. 16), but the correctness of this passage and the right were denied by the Court of King's Bench in Ireland on full discussion in 1811. 31 How. St. Tr. 543. Such has been the holding of the Supreme Court of Connecticut in a late case. State v. Hamlin, 47 Conn. 95. The early leading jurists in this State came from, and were educated in Connecticut, and gave to our State early laws and practice largely like those which existed in that State. The exercise of such right is attended with many inconveniences, if not inconsistences. The proceedings of the grand jury are secret, and many indictments are found against persons against whom no antecedent proceedings have been taken. It cannot well be held that a person who did not know that any proceedings were likely to be had against him before the grand jury, by failure to object at the organization, waives any irregularity in the method of the selection, return, or organization of the grand jury. Neither is it quite consistent to hold that a person bound up to answer to such indictment as the grand jury might find against him, should before, or at the organization, object for irregularities in the method of selecting, returning and organizing the grand jury, or be held to waive the objection, when he has no right to be heard before that body in the proceedings there to be taken against him. We think that it is the better, and more consistent practice which has heretofore, universally, so far as we are aware, prevailed, that such objections are not waived by one, bound up, by a failure to insist upon them at the organization of the grand jury, but that they may and must be taken advantage of by a plea in abatement before, or at the time, the accused first pleads to the indictment.
As to irregularities in drawing, the disqualifications of petit jurors, which are somewhat...
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