Opinion
APRIL TERM, 1799.
INDICTMENT for Treason by levying war against the United States, at Bethlehem, in the County of Northampton. The Prisoner, after a trial that lasted fifteen days, was convicted: whereupon Lewis and Dallas, his Counsel, moved for a new trial, on two general grounds.
The length of the trial introduced the question, how far the Court could order an adjournment in a capital case? The principle of necessity, and the recent precedents in England, in the cases of Rex vs. Hardy, and Rex vs. Tooke, were considered by the Court and acted upon. The jury were, however, kept together in the same room at a Tavern, during the times of adjournment; and once (on Sunday) were taken for recreation, in a carriage, into the Country; but still remaining under the charge of an officer, and within the jurisdiction of the Court.
1st. That there had been a mis-trial.
2d. That there had not been an unbiassed and impartial trial.
I. The facts on the first ground, appeared to be these: A venire, tested the 11th of October, 1798, and returnable the 11th of April, 1799, had issued, by which the Marshal was commanded to summon 24 Grand-Jurors, and "a number of "honest and lawful men of your said district, not less than "forty-eight, and not exceeding sixty, to serve as petit-jurors." Annexed to this Venire, the Marshal, in due form, made a return of the whole number of sixty jurors, all of whom were summoned from the City and County of Philadelphia: And on a separate paper, signed by him, he returned an additional number of 17 jurors, summoned from the County of Northampton, and of 12 jurors, summoned from the County of Bucks; making, in the whole, 89 jurors. For this latter return, however, no Venire had issued, nor did any special award appear on the Record; and the jury that tried the Prisoner, was composed of jurors from Philadelphia, Northampton, and Bucks.
On these facts, the Prisoner's Counsel made the following points:
That although it was not usual to grant a new trial in a capital case, it was, unqestionably, in the power of the Court to do it. 3 Bl. Com. 391. 1 Burr. 394. 2 Stra. 968. 6 Co. 14.
That before any process for the trial issued, the Act of Congress contemplates a decision of the Court on the place of trial, the number of jurors to be summoned from the proper County, and the other parts of the District from which the rest of the jurors shall be summoned.
That the Venire had issued before the decision of the Court on these preliminaries; that the authority of the Venire went no further than to summons sixty jurors; and that sixty jurors being actually summoned and returned from Philadelphia County alone, the authority of the writ was executed.
That neither the Act of Assembly of Pennsylvania, nor the common law of England, would furnish a power, or precedent, for returning a greater number of Jurors than the Venire, or an order of the Judges, authorised. 2 State Laws, 263. s. 4. 5. 3 Bac. Abr. 739. Co. Litt. 155. a. 2 Hal. H.P.C. 263. Keyl. 16. 2 Dall. Rep. 340. 4 Bl. Com. 344. 3 Bl. Com. 352. Co. Litt. 155 a. 21 Vin. Abr. 472. 6 Co. 14.
That, therefore, a greater number of jurors have been returned, than the Venire directed, or the Judges ordered; and that there was no authority at all for summoning the jurors from the Counties of Bucks and Northampton.
That even supposing the 29th section of the Judicial Act could have the effect of a Venire, that effect could extend no farther, than to authorise the Marshal to summons jurors from the County, in which the crime of the particular offender under trial is charged to have been committed; but the Marshal had summoned the jurors from other Counties; and, in fact, the Prisoner had been tried by Jurors from the three counties. See 4 Hawk. P.C. c. 27. s.p. 136. 2 Hal. 260. 2 Hawk. c. 41. s. 2. p. 376. 4 Hawk. 171. 3 Bac. Abr. 754. Doug. 591.
That criminal prosecutions are not within the statutes of Jeoffaille; the exception appears on the Record; it may be taken advantage of at any time; and for any mis-trial, on account of jury process, as well as on any other account, the verdict must be set aside. 4 Bl. Com. 369. 2 Hawk. c. 27. 1 Ld. Raym. 141. 4 Hawk. c. 31. s. 4 p. 240. Ibid. c. 47. s. 12. p. 464. 5. Ibid. c. 27. s. 104 p. 175, 6. Laws of Errors, 65. 4. Hawk. c. 25. s. 24. p. 16. Ibid. c. 35. s. 28. p. 17.
That the Venire for summoning the jurors on the trials in the year 1794, did not restrict the Marshal, as the present does, not to exceed sixty; but required him, generally, to return "a number of honest and lawful men of your said District not less "than forty-eight (whereof 12 shall be of the said County of Alleghaney) to serve as petit jurors;" and this mandate gave the Marshal the discretion referred to by Judge PATERSON, as having been properly exercised. 2 Dall. Rep. 335.
II. The facts on the second ground in support of the motion for a new trial were, that Rhodes, one of the jurors, after he had been summoned as a juror, declared at several places, at several times, and to several persons, in substance, as follows: — "That he was not safe at home for these people (meaning the "insurgents) that they ought all to be bung, and, particularly, "that Fries must be hung." The Juror was confronted with the witnesses who attested these declarations, and denied them, as pointed particularly at Fries; but admitted that he had made use of general expressions, indicative of his disapprobation of the conduct of the Insurgents.
It was doubted whether the juror was a competent witness on this question; but THE COURT thought, that though he could not be compelled to give testimony, he might give it is he pleased; and, accordingly, he was admitted, at his own request. On the examination, however, agreed, on all hands, that he was an upright man.
On these facts, the Counsel for the prisoner admitted, that the proper time for taking this objection, would have been, when the Juror was called to be sworn, had they been apprised of it; but, they insisted, that what would have been good cause of principal challenge, if known, is good cause to set aside a verdict, if not known; and that the previous hostile declarations of a Juror would be a good cause of challenge. 11 Mod. 119. Salk. 645. 3 Bac. Abr. 258. 9. 4 St. Trials. 743. Cooke's Case.
The answers given by Rawle, the attorney of the District, and Sitgreaves, in support of the verdict, were, to the following effect:
I. That the venire, and act of Congress, furnished a sufficient authority to the Marshall for both returns of Jurors: And that, in fact, the District Judge had given a verbal order, subsequent to the venire, for returning those additional jurors, who were summoned from the counties of Bucks and Northampton.
The District Judge certified this saft during the argument.
That after having challenged the poll, the party was too late to challenge the array. Co. Litt. 158. 12 Mod. 567. Ld. Raym. 884.
That the venire, on the English authorities, is in itself a limitation, directing 24 to be returned; and yet for conveniency a greater number is always summoned. 3 Bac. Abr. 245. 276. Cro. J. 467. 2 Tri. per. Pais. 599. 3 St. Tri. 707. Ld. Russel's case. The United States vs. the Insurgents. 2 Dall. Rep. 335.
That is a person not summoned at all gives the verdict, the verdict will be bad; but where the whole of the Jurors have been summoned by the Marshall, an exception, even before trial, ought not to prevail. There were, in fact, only 50 of the 89 persons who were summoned, that did attend; and the venire is not exceeded by that number. 4 Hawk. c. 41. 1 Vol. Acts of Congress 58. Doug. 591.
That there is, in substance, an award of the Jury by the Court, after issue was joined between the United States and the Prisoner, as appears by the clerk's indorsement on the indictment; and the names of the twelve Jurors who tried the indictment, were duly notified to the prisoner.
II. That although the power of the Court to grant a new trial in a capital case could not be denied, such a new trial had been seldom, if ever, granted; and cause of challenge to a Juror ought to be very cautiously received as a ground for setting aside a verdict.
That, in this case, if the Court thought there was no injustice, there ought to be no new trial. 2 Burr. 936.
That the declarations of the Juror related to the general transaction; they were not applied to the issue he was sworn to try; and they were not personally vindictive as to Fries. 21 Vin. Abr. "Juries" Co. Litt. 157. b. Tri. per Pais. 189. 2 Roll. Abp. 657. 4 St. Tri. 748. 21 Vin. Abr. "Trial" 266. 1 Salk. 153. Respublica vs. Clifton, in the Supreme Court of Pennsylvania, a pamphlet.
After a solemn consideration of the subject, IREDELL, Justice, delivered his opinion in favor of a new trial, on the second ground of objection, that one of the Jurors had made declarations, as well in relation to the prisoner personally, as to the general question of the insurrection, which manifested a biass, or pre-determination, that ought never to be felt by a Juror. He added, that he did not regard the first ground of objection as insurmountable; but deemed it unnecessary to give a decisive opinion on it.
PETERS, District Judge, did not think, that either objection ought to prevail. He thought that the venire, and returns of the jurors, were authorised by principle and precedent; and that the declarations of Rhodes were such as might naturally be made in relation to the insurrection, without manifesting a particular hostility towards the prisoner, or leading to a conviction in spite of any evidence, or argument, that might occur on the trial As, however, the consequence of dividing the Court, would be a rejection of the motion; and as the interests of public justice, and the influence of public example, would not be impaired by the delay of a new trial, the DISTRICT JUDGE determined to acquiesce in the opinion of JUDGE IREDELL.
A new trial awarded.