People v. M'Kay
The People against M'Kay
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Spencer, Ch. J.
delivered the opinion of the Court. It has properly been conceded by the Attorney General, that the paper purporting to be a venire, is to be regarded as a nullity, it not having the seal of this Court impressed upon it. The points which have been argued, and which the Court is called upon to decide, are, 1: Whether the trial was regular without a venire returned and filed ; 2. Whether the fact which appears on the return, that the prisoner peremptorily challenged several jurors, cured the defect of a venire ?
It has not been controverted, and it certainly could not be, with effect, that at common law, a venire is essentially necessary to authorize the sheriff to summon a jury; and that an omission of that process would be a fatal defect. The trial of collateral issues, and a jury de medietate lingua, form exceptions to the general rule of the common law. It has, however, been urged, that the provisions of the statute for regulating trials of issues, and for returning able and sufficient jurors, (1 N. R. L. 328.) dispense with the necessity of a venire. The 11th section of the act authorizes the clerks of counties to draw the names of jurors for the trial of issues, without any venire previously issued, fourteen days previous to the holding of the Courts, after giving ten days notice ; and after drawing the number required, and completing the panel, the clerk is to make out, and certify under his hand, a panel of the jurors so drawn, and deliver the same to the sheriff, “ whose duty it shall be to summon the several persons whose names are contained in such panel, at least eight days previous to the sitting of such Court, and to make return in what manner he has served such process.”
The 16th section of the act concerning the Circuit Courts and Sittings, and the Courts of Oyer and Terminer and Gaol Delivery, (1 N. R. L. 339.) requires of the sheriffs of each of the counties, to cause to come before the Courts of Oyer and Terminer and Gaol Delivery, to be held therein, twenty-four good and lawful men, as grand jurors, and likewise, so *217 many good and lawful men of the same city and counties respectively, duly qualified to serve as jurors therein, as the said Courts of Oyer and Terminer and Gaol Delivery, or any Justice thereof, shall, from time to time, direct; and it requires the district attorneys, as soon as conveniently may be, after every Circuit Court shall be appointed to be held, within their respective districts, and at least fifteen days before the lime of holding the same, to issue precepts under the seal of the Supreme Court, directed to the respective sheriffs of the same cities and counties, for the purposes afore said, mentioning the day and place, when and where the said Courts are to be held, and commanding the said sheriffs respectively, to do what is required of them. These two statutes being in pari materia, must both be taken into consideration, in deciding whether the venire was intended to be dispensed with by the first statute. If these are construed together, it is manifest the legislature did not intend to super-cede the use of a venire. It cannot be admitted, that in requiring the panel to be delivered to the sheriff, and in requiring the sheriff to make return in what manner he has served such process, the legislature could be guilty of the absurdity of considering the panel, containing only the names of the jurors, their places of abode and addition, as a process. The process referred to must be the venire, under the seal of the Supreme Court. The only necessity now remaining for the issuing and placing a venire in the hands of the sheriff, regards the return to be made upon it. The sherifl’s return of the manner in which he has performed his duty, must be made on this process, that the Court may be officially informed, that the sheriff has duly obeyed its mandate. Inasmuch, then, as a venire was necessary at the common law, and as the statute yet requires it to be issued, the omission to issue it, we must consider an error apparent on the record; and in s.uch a case, affecting life, we do not feel ourselves authorized to dispense with a process, required by the common law, and also by the statute, although we may not be able to perceive much use in continuing it.
We are not of the opinion, that the prisoner’s peremptory challenge of jurors was a waiver <?f his right to object *218 now to the want of a venire. It seems to be an admitted principle, that a challenge to the polls, is a waiver of a challenge to the array; but the objection now taken, is not to the array ; a challenge to the array is an exception to the panel m which the jury are arrayed and set in order by ihe sherifl in his return; and it may be made on account of partiality, or of some default in the sheriff who arrayed the panel. (3 Bl Com. 359.) It is a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing upon all his rights, and waiving nothing on the score of irregularity. We are, therefore, clearly of opinion, that the judgment must be arrested. His counsel has suggested a doubt, whether arresting the judgment does not entitle him to -be discharged without being subjected to another trial. It will be observed, that the judgment is arrested on the motion of the prisoner. An act done at the request, and for the benefit of a prisoner, we are clearly of opinion, cannot exonerate him from another trial, A case, analogous in principle, occurred in Ontario c. ounty, in 1814. A woman of colour was indicted, and tried for murder, and found guilty. The jury had separated, after agreeing on a verdict, and before they came into Court; and on that ground a new trial was granted, and she was tried again. We know of no case which contains the doctrine, that where a new trial is awarded, at the prayer, and in favour of a person who has been found guilty, that he shall not be subject to another trial.
Let the prisoner be remanded to the gaol of the county of Allegany, and let the proceedings be sent down by pro-cedendo.
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