Kinsey C. J.
delivered the opinion of the court. Without a legal presentment, no man can, under our administration of the laws, he tried for any heinous offence; and certainly without such legal presentment, he ought not to be called upon to answer a charge, by which he is accused of one of the enormous crimes known in our law.
. The legislature have been of the same opinion, and have thought proper particularly to specify the requisites which it shall be necessary for the persons, who execute the functions of grand jurors, to possess. By the 2d section of the law in question, (Allinson 24) it is declared, that every person who shall be summoned and returned to serve as a grand juror, shall be a freeholder, and be possessed of real or personal estate, to the value of one hundred pounds.
So positive and affirmative a description as this, implies, in our minds, a negative, as much as if it were actually expressed. That the indictor, or person presenting the accusation against the prisoner, was not such a person, and did not possess the qualifications required by the act of assembly, is surely, in its nature, fairly the subject of a plea to the bill of indictment. It is a reasonable and lawful answer to an accusation, that it has not been preferred in the manner, or by the persons, which the law recognizes; and it results from the provisions of the statute, as clearly as if it had been explicitly pointed out.
To contend that the accused person must challenge the grand j uror, when he is called in court to be sworn, would be just as much an innovation upon the act of assembly. Ko [415]*415mode is pointed out in which the exception is to be taken, and we consider that as the most correct mode which, without being otherwise peculiarly repugnant to the principles or policy of the law, is best calculated to give effect to its humane and salutary provisions. If the mode by challenge is to be adopted, it must necessarily result, that nine times out of ten the benefit of a statute, which provides a security for our lives, fortunes, and reputation, by requiring that an indictment shall always be presented by jurors, respectable for their character and standing in society, shall be absolutely lost to the accused, without any actual neglect or fault of his own. It frequently occurs that the accused is altogether ignorant of the complaint when the grand jury is called; if he should chance to be present, he cannot be assured that the prosecution will proceed; and, at any rate, it would be most extraordinary for him to make his challenges when there is no certainty that his case will come under their cognizance. In most cases of a capital nature, the person charged with the offence is actually in confinement, and has not the physical capacity to make his challenges; he is never brought up and confronted with the grand jurors; nor is he served with a list of the persons who are to compose it; thus circumstanced, it would be worse than a form ; it would be a mockery of law and justice to compel him to avail himself of exceptions of this kind, or to be considered as forever waiving every error in the proceedings of the sheriff.
It is surely the proper time, and certainly early enough, for the accused to except to the qualifications of the inclictors after the bill has been presented against him. He then knows, or can be informed, who they are; he has time to ascertain their qualifications, and his own means of proving the exceptions which he may be advised to take; and wo are unable to perceive any grounds upon which he can bo fairly deprived of his plea to their incompeteucy.
[416]*416In the case before the court, the demurrer admits that Quick was not a freeholder, and that without him the bill is found by eleven jurors only; the presentment is therefore void, and avoidable by pleading.
This is not by any means an anomalous case; the same principle, or one very similar to it, has been before recognized in this court. The legislature have directed, that in the case of Quakers, an affirmation shall have the same legal effect as an oath. One Sharp, who had been convicted of murder at the Burlington Oyer and Terminer, moved, in arrest of judgment, that it appeared on the face of the indictment that it was found on the oaths of part of the jury, and the solemn affirmation of others, without stating these last “to be of the people called Quakers;” the judgment was arrested upon this ground. The act of the legislature, which gives the affirmations of Quakers the same validity and effect as an oath, does not, however, in express terms, require that it shall appear on the face of the proceedings themselves that the affirmants did actually belong to this religious persuasion; nor does it authorize the exception to be taken, after conviction; nevertheless we hold ourselves bound to allow it. In that case it was not argued, -that Sharp ought to have challenged the jurors who were affirmed, oh the ground of their not being Quakers, when they came to be qualified ; and though no such answer was given, it is equally certain that it would have been deemed insufficient.
Upon the whole, the court entertain no doubt upon the subject, and think that judgment must be given for the prisoner upon the demurrer.
Indictment quashed.
Rockafellow being afterwards brought up before the court on a habeas corpus.
[417]*417Frelinghuysen and R. Stockton, for tlie prisoner, moved that he might be admitted to bail.
In support of the application, they laid before the court the affidavit of the prisoner himself, as well as of several other persons, tending to establish the fact of his^ innocence, and to disprove the relation of the woman, as to the employment of force.
They contended that this court had a discretionary power to admit to bail in all cases, and cited 1 Com. Dig. 658, Bail F. 1; Ib. 660, 662; 4 Black. Com. 299, as to the general power of the court, and the circumstances under which this discretion would be exercised. The case of The King v. Bell, Andrews 64, was also insisted upon. In that case, the prisoners being brought up by habeas corpus, their own affidavits were read to shew that this was a groundless and malicious prosecution. Other persons testified that two sessions had elapsed since their commitment, without any trial. The court admitted them to bail, principally upon the ground that there having been an assizes since their commitment, they might have been tried before; and Lee, O. J., said he remembered a similar case, where, on account of a delay, the defendant was bailed.
This case was also referred to, to shew the propriety of receiving the affidavits of the parties themselves, in cases of this kind. In that case, Urling objected to reading the affidavits by the defendants; but the court said they might make use of any means for receiving light in the case, in order to guide their discretion, though they would not place an undue credit on the affidavits of the parties.
1 Com. Dig. 660, cites Fitzpatrick’s case from 1 Salk. 108, where, though the commitment was for high treason, the court admitted to bail upon the single ground that a sessions was past without prosecution. They will also admit to bail when the matter charged appears doubtful. 1 Bac. Abr. 356. The King v. Lord Baltimore, 1 Bl. Rep. 648. 2 Hawk. 175-6, c. 15, see. 80.
Free access — add to your briefcase to read the full text and ask questions with AI
Kinsey C. J.
delivered the opinion of the court. Without a legal presentment, no man can, under our administration of the laws, he tried for any heinous offence; and certainly without such legal presentment, he ought not to be called upon to answer a charge, by which he is accused of one of the enormous crimes known in our law.
. The legislature have been of the same opinion, and have thought proper particularly to specify the requisites which it shall be necessary for the persons, who execute the functions of grand jurors, to possess. By the 2d section of the law in question, (Allinson 24) it is declared, that every person who shall be summoned and returned to serve as a grand juror, shall be a freeholder, and be possessed of real or personal estate, to the value of one hundred pounds.
So positive and affirmative a description as this, implies, in our minds, a negative, as much as if it were actually expressed. That the indictor, or person presenting the accusation against the prisoner, was not such a person, and did not possess the qualifications required by the act of assembly, is surely, in its nature, fairly the subject of a plea to the bill of indictment. It is a reasonable and lawful answer to an accusation, that it has not been preferred in the manner, or by the persons, which the law recognizes; and it results from the provisions of the statute, as clearly as if it had been explicitly pointed out.
To contend that the accused person must challenge the grand j uror, when he is called in court to be sworn, would be just as much an innovation upon the act of assembly. Ko [415]*415mode is pointed out in which the exception is to be taken, and we consider that as the most correct mode which, without being otherwise peculiarly repugnant to the principles or policy of the law, is best calculated to give effect to its humane and salutary provisions. If the mode by challenge is to be adopted, it must necessarily result, that nine times out of ten the benefit of a statute, which provides a security for our lives, fortunes, and reputation, by requiring that an indictment shall always be presented by jurors, respectable for their character and standing in society, shall be absolutely lost to the accused, without any actual neglect or fault of his own. It frequently occurs that the accused is altogether ignorant of the complaint when the grand jury is called; if he should chance to be present, he cannot be assured that the prosecution will proceed; and, at any rate, it would be most extraordinary for him to make his challenges when there is no certainty that his case will come under their cognizance. In most cases of a capital nature, the person charged with the offence is actually in confinement, and has not the physical capacity to make his challenges; he is never brought up and confronted with the grand jurors; nor is he served with a list of the persons who are to compose it; thus circumstanced, it would be worse than a form ; it would be a mockery of law and justice to compel him to avail himself of exceptions of this kind, or to be considered as forever waiving every error in the proceedings of the sheriff.
It is surely the proper time, and certainly early enough, for the accused to except to the qualifications of the inclictors after the bill has been presented against him. He then knows, or can be informed, who they are; he has time to ascertain their qualifications, and his own means of proving the exceptions which he may be advised to take; and wo are unable to perceive any grounds upon which he can bo fairly deprived of his plea to their incompeteucy.
[416]*416In the case before the court, the demurrer admits that Quick was not a freeholder, and that without him the bill is found by eleven jurors only; the presentment is therefore void, and avoidable by pleading.
This is not by any means an anomalous case; the same principle, or one very similar to it, has been before recognized in this court. The legislature have directed, that in the case of Quakers, an affirmation shall have the same legal effect as an oath. One Sharp, who had been convicted of murder at the Burlington Oyer and Terminer, moved, in arrest of judgment, that it appeared on the face of the indictment that it was found on the oaths of part of the jury, and the solemn affirmation of others, without stating these last “to be of the people called Quakers;” the judgment was arrested upon this ground. The act of the legislature, which gives the affirmations of Quakers the same validity and effect as an oath, does not, however, in express terms, require that it shall appear on the face of the proceedings themselves that the affirmants did actually belong to this religious persuasion; nor does it authorize the exception to be taken, after conviction; nevertheless we hold ourselves bound to allow it. In that case it was not argued, -that Sharp ought to have challenged the jurors who were affirmed, oh the ground of their not being Quakers, when they came to be qualified ; and though no such answer was given, it is equally certain that it would have been deemed insufficient.
Upon the whole, the court entertain no doubt upon the subject, and think that judgment must be given for the prisoner upon the demurrer.
Indictment quashed.
Rockafellow being afterwards brought up before the court on a habeas corpus.
[417]*417Frelinghuysen and R. Stockton, for tlie prisoner, moved that he might be admitted to bail.
In support of the application, they laid before the court the affidavit of the prisoner himself, as well as of several other persons, tending to establish the fact of his^ innocence, and to disprove the relation of the woman, as to the employment of force.
They contended that this court had a discretionary power to admit to bail in all cases, and cited 1 Com. Dig. 658, Bail F. 1; Ib. 660, 662; 4 Black. Com. 299, as to the general power of the court, and the circumstances under which this discretion would be exercised. The case of The King v. Bell, Andrews 64, was also insisted upon. In that case, the prisoners being brought up by habeas corpus, their own affidavits were read to shew that this was a groundless and malicious prosecution. Other persons testified that two sessions had elapsed since their commitment, without any trial. The court admitted them to bail, principally upon the ground that there having been an assizes since their commitment, they might have been tried before; and Lee, O. J., said he remembered a similar case, where, on account of a delay, the defendant was bailed.
This case was also referred to, to shew the propriety of receiving the affidavits of the parties themselves, in cases of this kind. In that case, Urling objected to reading the affidavits by the defendants; but the court said they might make use of any means for receiving light in the case, in order to guide their discretion, though they would not place an undue credit on the affidavits of the parties.
1 Com. Dig. 660, cites Fitzpatrick’s case from 1 Salk. 108, where, though the commitment was for high treason, the court admitted to bail upon the single ground that a sessions was past without prosecution. They will also admit to bail when the matter charged appears doubtful. 1 Bac. Abr. 356. The King v. Lord Baltimore, 1 Bl. Rep. 648. 2 Hawk. 175-6, c. 15, see. 80.
[418]*418Perhaps there is no one crime in the whole extent of criminal law which can be so easily charged as that alleged against the prisoner — none which can be repelled with greater difficulty; (H H. P., c. 633, 635) and consequently there is none in which the court ought more cautiously to watch over and protect the accused.
Woodruff (attorney-general) and Leake, contra, argued, that under the act of assembly of 22d November, 1794, (Pat. 129) persons chargeable with rape are expressly excluded from being admitted to bail, which extends to this court as well as to justices of the peace. 4 Black. Com. 299.
Kinsey, C. J.,
delivered the opinion of the court. We are not now sitting to try the merits of the case, or to enter into any nice inquiry as to the precise weight that ought to be allowed to the evidence for and against the prisoner.
This court may bail in this case, notwithstanding the act of assembly of the 22d of November, 1794, which only prohibits the sessions and justices of the peace from admitting to bail in cases of rape, and other crimes specified in the act. The discretionary power of the justices of the Supreme Court, remain unimpaired by that law, and their right to bail when they think the prosecution groundless, or when there are other circumstances which render it proper, still continues as before.
In this case, hoWever, we do not think the prisoner has made out such circumstances as would entitle him to this advantage in the proper exercise of our discretionary powers. As the affidavits stand upon both sides, the evidence of his guilt is very strong. There are, indeed, some favorable circumstances which no doubt will receive the fullest consideration of the jury by whom the cause will be eventually tried; but we do not, and we cannot, form a judgment upon the effect of this testimony, or how far it [419]*419goes to exonerate him from the charge, or to fix the crime upon him. This is a matter for another, and a constitutional tribunal.
Under such circumstances, we should scarcely feel ourselves warranted in granting the present application; but what weighs decisively in our minds against it is his escape and flight from the constable. lie does, indeed, undertake to shew that ho had no intention of flying from justice, but that he meant to surrender himself and take his trial. This is possible, and we will not say that he is guilty of an untruth ; but the fact is, he did not make a voluntary surrender, hut was retaken by the activity and exertions of the sheriff. His letters to the sheriff might have been designed only to amuse him; many professions were made, hut no voluntary surrender.
We entertain serious doubts as to the truth of the accusation ; but a dubious case, attended with an actual escape and flight from the officer of justice, decides us against the application. The prisoner has been retaken, and must remain in custody until discharged by due course of law.
Prisoner remanded.
It would seem, from 2 Hawk. 312, c. 25, sec. 28, that if one of the grand jury who find an indictment, be within any one of the exceptions, he vitiates the whole though never so many unexceptionable persons joined with him in finding it.