Vanhook v. State

12 Tex. 252

Opinion

Wheeler, J.

It might suffice to dispose of this case, that the falsity of the plea may have been apparent to the Court from the entries and records brought before it by the exceptions. The Court might well decline to hear evidence in support of, and overrule a plea, which appeared by the record, to be untrue. Exceptions to a plea, the truth or falsity of which is apparent by the record, cannot have such effect, as admissions, as to falsify the record ; or to require the Court to hear evidence in contradiction thereof. That the jury list had been revised as the law directs, and that the names of the persons who served as grand jurors were upon the jury book, may have been apparent to the Court by inspection of the record brought before it by the exception. And as those records are not embodied in the transcript before us; and there is nothing appearing to the contrary in the records, we must presume, if necessary to support the judgment, that it did so appear to the Court conclusively by the records before it. The case cited by counsel (The State v. Brooks, 9 Ala. 9) is an authority for holding the records of the County Court conclusive evidence of the facts they recite, (and see 3 Ala. 378.) And this is not inconsistent with the doctrine, heretofore maintained by this Court, that matters showing the want of the requisite legal qualifications of grand jurors, may be pleaded in ábatement to an indictment found by them, and may be proved by evidence aliunde. For the record may not recite the facts constituting their legal qualification; and if it did show them possessed of the requisite qualifications, qt the time their names were entered in the jury book, they may have become disqualified before serving upon the grand jury ; and so the record can afford but prima faaie evidence that, at the time of finding the indictment, they possessed the requisite legal qualification. (Jackson v. The State, 11 Tex. R. 261.)

We might therefore affirm, the judgment in this case, on the ground that it does not appear by the record, that the Court erred in its judgment, though it were admitted that the plea-in abatement, if true, would have required a different judgment.

But, as it is proposed by the opinion in this case, to dispose of similar questions in other cases, in which they have not been so fully discussed ; but in which they are presented in a manner requiring a decision upon their merits, we may consider» the matters pleaded in abatement, as admitted by the exception, without reference to the record evidence on which the-Court may have acted in sustaining the exceptions.

It is said in Wharton’s American Criminal Law, that “Much “ difference of opinion has existed on the question whether, “ after bill found, the defendant can take advantage of the in- “ competency of any of the grand jury who found it. In Massachusetts, it was said, generally, that objections to the per- “ sonal qualifications of a grand juror, or to the legality of the “returns, cannot affect any indictments found by them, after “ they have been received by the Court and filed; and though “‘the doctrine was doubted in a subséquent case, it cannot be “ said to have been overruled. The Mew York practice, ai “ Common Law, was, as has been stated, substantially the “ same.” He refers to the decisions of other State Courts, showing a contrariety of opinion on the question whether-even the want of legal qualifications, or competency on the part of grand jurors, can be pleaded in abatement. He thinks the English rule is that it may be so pleaded. “It is neces- “ sary, however, (he concludes) that the plea in such caso- “ should set forth sufficient to enable the Court to give judg“mentón it on demurrer; thus, where, upon a presentment “ by a grand jury for gaming, the defendant tendered a plea “ in abatement, that one of the grand jurors nominated him- “ self to the Sheriff to be put on the panel, and he summoned “ him to serve, without alleging that this nomination of him- “ self, by the grand juror, was corrupt, or that there was a. “ false conspiracy between him and the Sheriff for returning “ him on the panel, it was held that the plea was naught.” (Wharton’s Am. Cr. Law, 121, 122.)

Mr. Wharton, by his references, shows that while in some of the States, as Virginia and Tennessee, it is held that the incompetency of grand jurors may be pleaded in abatement, in others, as Massachusetts and Hew York, it was held that at Common Law even this could not be done. And he refers to no case, in which it has" been held that mere irregularities in the manner of constituting, or impannelling the grand jury, can be pleaded in abatement. And the cases he cites, in so far as we can judge of their doctrines from his references, and especially the case referred to last in the quotation I have made from his text, (Com. v. Thompson, 4 Leigh, 667,) go far to support the opposite conclusion ; that is, that it is only matters which go to the competency of grand jurors, that can be pleaded in abatement. Such seems evidently the Virginia doctrine, from his statement of the ruling in the case cited. In the case of the Commonwealth v. Smith, (9 Mass. 108,) cited by Wharton, the reporter deduces from the case the general principle, that “ After an indictment has been rb4i ceived and filed by the Court, no objection of an irregularity “in impannelling the grand jury can be received as a plea to “ such indictment.” The plea in this case, however, was that one of the grand jurors who found the indictment was incapacitated to serve as a juror. The Court held the plea bad. And in a note by the reporter it is said, that “ Hawkins says “ that if any one of a grand jury who find an indictment, be “ within any of the exceptions to the statute, he vitiates the “ whole, though ever so many unexceptionable persons joined “ with him in the finding, (B. 2, Ch. 25, Sec. 28,) and that “ the prisoner may plead such matter in avoidance of the in- “ dictment, and plead over to the felony. (B. 2, Ch. 25, Sec. “ 26.) And so says Chitty, if it be discovered after the find- “ ing. (Crim. Law, vol. 1, p. 307.)” But there is no intimation that irregularities in the manner of constituting the grand jury, which do not extend to the impannelling of persons as jurors, who are incompetent to serve, can be pleaded in avoidance of the indictment. The only case we are aware of, which maintains that doctrine, is the case cited by counsel for the appellant, of the State v. Conner, decided by the Supreme Court of Indiana. (5 Blackf. 325.) In that case it was held that if the record of the board doing county business, do not show that the grand jurors who found an indictment were selected according to the provisions of the statute, the indictment will be quashed. And the decision was placed upon the ground that “ the indictment was therefore found by an incompetent grand jury.” (Id. 327.) The conclusion of the Court seems to be a non sequitur. The more logical conclusion would seem to have been, that it did not affirmatively appear that the indictment was found by a competent grand jury. The result might, perhaps, have been the same. But this decision appears to have been very shortly afterwards followed by legislative interposition, to prevent the mischiefs, which such a doctrine would have occasioned. (Bellair v. The State, 6 Blackf. 104.) The same Court had previously decided that a departure from the statute, in selecting the grand jury, or an omission and an irregularity in selecting a petit jury, would be good cause of challenge to the array. (3 Blackf. 37, 258, 259; 5 Id. 121.) And this seems tobe the extent to which the authorities on the subject warrant the Court in going. But even a challenge to the array, it is said, “ will “ not be allowed on the ground that in the selection of the “ grand jurors, all persons belonging to a particular fraternity “ were excluded, if those who are returned are unexception- “ able, and possess the statutory qualifications.” (Wharton’s Am. Cr. Law, 121.) And, “in Hew York, while it is said to “ be a good cause of exception to a grand juror, that he has “ formed and expressed an opinion as to the guilt of a party “ whose case will probably be presented to the consideration “ of the grand inquest, it is added, that such exceptions must “ be taken before the indictment is found, and will not after- “ wards be heard.” (Id. 120.)

The better opinion, to be deduced from the authorities to which -we have access, seems to be, that irregularities in selecting and impannelling the grand jury, which do not relate to the competency of individual jurors, can, in general, only be objected by a challenge to the array. But that the incompetency, or want of the requisite qualifications of the jurors, may be pleaded in abatement to the indictment. And this doctrine and distinction seems founded on principle. It is the right of the accused to have the question of his guilt decided by two competent juries, before he is condemned to punishment. It is his right, in the first place, to have the accusation passed upon, before he can be called upon to answer to the charge of crime, by a grand jury composed of good and lawful men. If the jury be not composed of such men as possess the requisite qualifications, he ought not to be put upon his trial upon a charge preferred by them ; but should be permitted to plead their incompetency to prefer the charge and put him upon his trial, in avoidance of the indictment. Otherwise, he may be compelled to answer to a criminal charge preferred by men who are infamous, or unworthy to be his accusers. And it may be that he will not have had an opportunity afforded to question their competency before the finding of the indictment. For the accused is not supposed to be present when the grand jurors are impannelled; he may not have been the subject of complaint or of suspicion ; and if he oould not plead to the indictment, in such a case, the incompetency of his accusers, the right to have the accusation preferred by good and lawful men might be virtually denied him. It is for the purpose, therefore, of securing to the accused a substantial right, affecting, it may be, his character and good name, if not his personal security, that he is allowed to plead in abatement or in avoidance of the charge, the incompetency of the persons by whom it was preferred. But if the jurors who preferred the charge are good and lawful men ; unexceptionable as respects qualifications, it can be of no consequence to the accused in what manner they were selected, or how im pannelled ; while it may be of the utmost consequence to the public that the administration of justice be not delayed or defeated by mere technical objections to the regularity of the proceedings of those who are appointed for the purpose of properly distributing and equalizing the burdens of the jury service. It is in these considerations, which have respect to the rights of the citizen on the one hand, and public convenience on the other, that the rules of the law on this subject are founded. And while they subserve the interests of the public, they can in no degree affect injuriously any rights of the accused.

In the case cited from 9th Alabama, it is said, that the board (appointed for the selection of juries) “ is required to “ perform its duties in a particular manner, but is entirely in- “ dependent of any supervision or control; its action, by the “ eighth paragraph of the ninth Section, is to be ascertained “ and made known by means of the certificate of the officers “ who compose it; when this certificate is made, its functions “ cease for the time, and there seems to be no mode by which “its action upon the matters confided to it, can be collaterally “ called in question or examined.”

And again, “ The jurors, when once selected and certified, “ seem to stand in the same condition as any other de facto “ functionaries, whose acts will not be vitiated, although they “ may be afterwards set aside as having had no right, in the “ first instance, to exercise the function.” (9 Ala. R. 13.)

In the case of The State v. Foster, (9 Tex. R. 65,) upon what is understood to be the English, and the better American doctrine, we held that the incompetency of a grand juror, by reason of the want of the requisite legal qualifications, may be pleaded in abatement. And the same principle was reaffirmed in the case of Jackson v. The State (11 Tex. R. 261.)

In the case of The State v. Jacobs, (6 Tex. R. 99,) it appeared by the record, that after the grand jury had been impannelled and sworn for the Term, the Court awarded a venire facias to summon a second grand jury, without having dis posed of the grand jury previously impannelled ; and after-wards entertained a .challenge to the array to the first jury, because the names of three of their number were not on the jury^book kept by the County Court. The Court set aside the entire grand jury first impannelled, when there was a competent number of jurors free from objection, and when if there had not been, the statute prescribed the manner in which their places should be supplied without affecting the pannel. (Dig. Art. 1651, 1652.) It was held that the action of the Court was improper and illegal; that the Court had no authority to issue a second venire before the first was disposed of; that the jury first impannelled was the legal grand jury for the Term ; that the second was impannelled without the authority of law, and that this was good cause for quashing an indictment found by them. This was the extent of the adjudication in that case. And it went to the full extent we feel authorized to go, in entertaining objections to the manner of constituting the grand jury, after they have acted in the capacity and discharged the office of jurors, and there is no question of their possessing the requisite legal qualifications. It would perhaps have been a sounder doctrine, and more in accordance with principle and authority, to have held that the objection should have been taken by challenge to the array, and came too late after indictment found. In that case, however, the irregularities complained of were committed by the District Court, and appeared by the record; and the case affords no pretence for the supposition that, the errors, omissions or irregularities of the County Court in relation to the selection of jurors, can be collaterally drawn in question by pleading to an indictment. Mor was there any question before the Court, as to what would be the effect upon the finding of the grand jury, where the names of some of its members were not on the jury book kept by the County Court.

We deem it unnecessary to enter into a critical analysis of the law respecting juries, or of the cases cited ; or further to protract the examination of this subject. Though there may have been occasional, or casual expressions of opinion, or dicta, to the contrary, we think it free from doubt, that the sound and true doctrine on this subject, and the only rule of safety,. is, that objections to the manner of constituting the grand jury must, in general, be taken by challenge, either to-the array or to the polls, and cannot be taken by pleading to the indictment; but that objections to the competency of individual jurors, may be pleaded in abatement. If the objection be to individual jurors, as, in the case of The State v. Jacobs, that their names were not on the jury book, it is cause of challenge to the polls; but if the objection be to the whole panel, it should be taken by challenge to the array.

This liability to challenge, for irregularities committed by the County Courts and other officers in selecting juries, will admonish them of the necessity of a strict observance of the law ; and will be as effectual to insure its observance as would be the permitting of these irregularities to be pleaded in avoidance of the indictment. And, on the other hand, the right to plead in abatement the want of competency in jurors, effectually secures to the accused the only right he has, or can have a pretence to claim ; that is, the right to have the accusation preferred by men unexceptionable in respect to qualifications. For there can be no pretence that it can be of any consequence to the accused, or that it can be at all material to his having a fair and impartial trial, in what manner, under the law, the jury is to be selected and impannelled, or what may be the regulations prescribed for the government of the officers in the performance of that duty, so that the jury is composed of good and lawful men, approved and accredited by possessing the proper qualifications. Every defence which a party is entitled to claim, is given to secure to him the enjoyment of some right; but it cannot be supposed that the right of the accused to a fair and impartial trial can be affected by the manner in which the jury, who are to determine the question of his guilt or innocence, may have been brought together for that purpose; or that the object of the law, in pre scribing regulations for the government-of its officers, in the performance of acts merely ministerial, appertaining to their duty in the selection of juries, was to secure that right to those ■who should be called to answer to a charge of having violated the law. The object of these regulations is very well expressed in the latter clause of the 4th Section of the Act, directing what disposition shall be made of the names in drawing the .jury, which is, “so as (in the language of the statute) to pre- “ serve, as nearly as may be, rotation in the service of jurors, <£ and to subject to jury service all who are legally qualified “ to serve.” (Hart. Dig. Art. 1644.)

It therefore is not because it was deemed necessary to secure to the accused any right, that these regulations were framed. Hor can it be with reason contended that he has the right to draw in question the regularity and legality of the acts of the officers to whom the duty of selecting juries is intrusted.

Our conclusion, therefore, is, that the matters averred in the .plea, though they may have been good cause of challenge, were not the proper subject of a plea in abatement; and that 6he Court did not err in adjudging the plea insufficient. The judgment is therefore affirmed.

Judgment affirmed.