Stevens v. Union R. Co.

• Decision Date: 16 March 1904
• Citation: 58 A. 492,26 R.I. 90
• Parties: STEVENS v. UNION R. CO.
• Court: Rhode Island Supreme Court

58 A. 492

26 R.I. 90

STEVENS

v. UNION R. CO.

Supreme Court of Rhode Island.

March 16, 1904.

Action by Walter H. Stevens against the Union Railroad Company. Judgment in favor of defendant, and plaintiff petitions for a new trial. Petition denied.

Argued before STINESS, C. J., and TILLING HAST and BLODGETT, JJ.

Comstock & Gardner, for plaintiff.

Henry W. Hayes, Frank T. Easton, and Lefferts S. Hoffman, for defendant.

BLODGETT, J. Two questions are presented by the exceptions; the first being whether the number of peremptory challenges to a jury shall be computed upon the total number of jurors qualified generally as jurors who are called, including those who are challenged for cause, or whether the basis of computation shall be the number called, exclusive of challenges for cause, but inclusive of the increment of substitutes upon peremptory challenges; and the second question being as to the effect of the allowance of a greater number of such challenges than is specified in the statute.

It is obvious that the answer to the first question must depend upon the construction to be given to the word "qualified" in Gen. Laws 1896, c. 243, § 2, as follows: "Either party in a civil action, or in any criminal proceeding, may, before the opening of such an action or proceeding to the jury, challenge in writing, addressed to the clerk of the court, any qualified jurors called for the trial of said cause or proceeding, not exceeding one in four, without alleging or showing any cause therefor; and after such objection the challenged jurors shall not sit in the trial of such cause, but other jurors shall be called to take the place of the challenged jurors for the trial of the cause."

The statute under consideration establishes the same rule for "any criminal proceeding" which it prescribes for "a civil action." Whether liberty or property be at issue, there is the same rule in this behalf in the composition of a jury for the trial of an indictment for murder as in the trial of an action of assumpsit. It is a statute, too, which is or may be invoked daily upon the impaneling of a jury. An examination of the statutory provisions of other states, as summarized in Thompson & Merriam on Juries, § 165, discloses that no other state provides for peremptory challenges in proportion to the whole number of persons called as jurors, but that in every state the maximum number of peremptory challenges is definitely prescribed by the statute. It accordingly becomes necessary to interpret and construe the provisions of our unique statute upon principle, rather than upon strict precedent, aided as we may be by a consideration of the course of legislation upon the subject, and by the analogies which may be deduced therefrom, and the object sought to be attained thereby.

Our first legislation upon the subject of peremptory challenges is contained in an act of the General Assembly passed in 1617, which by title specifically incorporates in its provisions an act of Parliament (32 Hen. VIII, c. 3) enacted in 1540, and is as follows (1 R. I. Col. Rec. 109): "And be it further enacted that men have their peremptory and other challenges, to the full as they have them in England, where for petty Treason, Murder and Felony, they may challenge to the number of twentie. See 32 Hen. VIII, c. 3." This statute is of special interest, because it first specifies the cases in which peremptory challenges might be allowed the accused, and fixes their number at 20; and this seems to have been the law of the colony and of the state until the revision of 1857 (Rev. St. c. 172, § 33), when the right of peremptory challenge was also extended to "any criminal proceeding" as well as to civil actions; the number being changed to one in six of the jurors called for each party (State v. Sutton, 10 R. I. 160) at the common law; there being no right of peremptory challenge in a civil action.

Conforming to the injunction to consult the statute 32 Henry VIII, c. 3, in order to determine the right to peremptory challenges "as they have them in England," it will be seen that this act, among other provisions, deprives of the benefit of clergy those who "challenge peremptorily above the number of Twenty Persons" under 25 Henry VIII, c. 3 (1533), as well as provides "that no person or Persons arraigned for any Petty Treason, Murther or Felony, should be admitted to any peremptory Challenge above the Number of Twenty" under 22 Henry VIII, c. 14 (1531), and makes them "to be observed and kept forever."

Prior to the passage of the statute last cited the number of challenges allowed at the common law to the accused was 35, and, if he challenged more than that number, he was to be hanged, although formerly to suffer death by pain fort et dure. And such seems to have been the law even in the next preceding reign of Henry VII, for in the Year Book 3 Henry VII, fol. 12 (5) (1488), it is recorded "Home arraign deuat Fairfax, Brian & Hough a Newgate chair, xxxvi. Et le question fuit, q srra fait de luy, Et touts les Justic de lun banke et de lauter accord' ore, q il serra pendu, et ne serra mis a son penance, Et voillent q chesc gard' ce rul' quant il viet en son circuit deuat luy Hussey dit, que les opinions des Justices en temps E. le 4. ad estre le cotrarie, Mes ore ils agree, come appiert douant." And see Year Book 4 Edw. IV, 11 (1465); 17 Edw. III, 42 (1343); Year Book 14 Edw. IV, 7 & 8 (1475), and Year Book 3 Henry VII, 2 (1488); Year Book 3 Henry VII, fol. 12 (8); and see Kelyng's Rep. 36 (temp. Car. II).

As to the effect of this statute, it is observed in Hawkins' Pleas to the Crown, book II, cap. 43, § 9, as follows: "It seems to be holden by Sir Edward Coke, that he who challenges more than twenty upon an Arraignment of Felony, since the abovementioned Statute of 22 H. 8. shall neither forfeit his Goods, nor have Judgment of Death, nor of Pain fort & dure, but shall only be overruled as to his Challenges so far as they exceed twenty, and put upon his Trial. But this seems to have been doubted by Sir Matthew Hale, and the contrary is holden by Crompton, and seems more agreeable to the most natural Construction of 22 H. 8. which seems to have intended no Alteration as to the Nature or Effect of Peremptory Challenges, but only as to their Number. To which may be added, That nothing is more Common than for subsequent Statutes which take from Felons the Benefit of Clergy, expressly to exclude those who challenge more than twenty, which would be needless if their Challenge were only to be over-ruled, and did not subject them to Judgment of Death, &c." But the later law seems to have been that the supernumerary challenges should be disregarded, and that the trial should then proceed after 20 challenges had been allowed the accused, although a statutory provision to that effect did not appear in the statutes of this state until 1838 (January session), "An act concerning crimes and punishments," section 28, p. 32, § 24, of which limits peremptory challenges to 20 "and no more." But the act of the General Assembly of 1647, supra, and the acts of Parliament therein referred to, relate only to the number of peremptory challenges allowed the accused, and it is therefore necessary to ascertain the law giving the number of such challenges allowed the prosecution by the law of England. At the common law this number was unlimited, and the counsel for the crown was only bound to object "quod non sunt boni pro Rege." But this right of peremptory challenge was early abolished, and the crown was required to challenge for cause only by the "Ordinatio De Inquisitionbus," 33 Edw. I, Stat. 4 (1305), which provided that henceforth, although those who prosecute in behalf of the King shall aver that certain jurors were not indifferent (boni) for the King, nevertheless the inquests should not remain untaken for that cause, but that, if they will challenge any jurors, they shall assign a cause certain for the challenge, which shall be inquired of according to the custom of the court, and thereafter the taking of the inquisitions shall proceed according as it shall be ascertained whether the challenges are true or false, after the discretion of the justices. ("Quod de cetero licet per ipsos qui pro domino Rege sequuntur dicatur quod juratores inquisitionum illarum seu aliqui illorum nou sunt boni pro Rege non propter hoc remaneant inquisitiones ille capiende set si illi qui sequuntur pro Rege aliquos juratorum illorum calumpniata fuerint assignent certam causam calumpnie sue & inquiratur Veritas illius calumpnie secundum consuetudinem Cur' & procedatur ad captionem illarum inquisitionum prout compertum fuerit si calumpnie vere Bint nec ne juxta discretionem Justic'.") And the provisions of this act seem to have governed the law in Rhode Island until the revision of 1857, supra, gave equal right of challenge to the state and to the accused. Says Lord Coke (1 Inst. 157b). "Now the causes of [challenge for] favour are infinite. * * * For all which the rule of law is, that he must stand indifferent as hee stands unsworne."

The relevancy of the foregoing observations upon the law relative to the challenging of jurors to the questions under consideration will more clearly appear when it is noted that from the earliest recorded legislation upon this question the policy of the law has been to restrict and make definite the maximum number of peremptory challenges, while leaving the number of challenges for cause wholly unlimited, and that the maximum number of the former is always a fixed and definite number, and is in no wise dependent upon the number of the latter. First, the right of peremptory challenge was taken from the crown entirely—1 Ventris, 309 (1678)—by Act 33 Edw. I, c. 4. Then death was the penalty at the common law for an accused who persisted in challenging more than 35 until the enactment of 22 Henry VIII, c. 14, made perpetual by 32 Henry VIII, c. 3, and incorporated in the act...