McGowan v. State

The judge who tries a prisoner is, under our system, the trier of the competency of jurors.- If a juror has heard the .circumstances of the case, and believing the statement he has heard to he true, lias formed, or formed and expressed an opinion, that is, has made up his mind as .to the guilt or innocence of the prisoner, he ought to be rejected. But where the piisoner challenged a juror for cause, and his objection was overruled by the court, and the juror in fact was incompetent, and the prisoner afterwards challenged him peremptorily, it was held, that unless the record showed that the prisoner exhausted his peremptory challenges, it was not an error for which this court will reverse the judgment. ’ As a general ruíe, where a statute creates a felony, all present aiding and abetting, arc guilty as principles. Under the act of 1829, not only the person who1 actually deals the cards at faro is guilty of felony, but the owner of the funds and house, who receives the profits, and is present managing, aiding and assisting, is also guilty as a principal. The circuit court in a criminal case charged the jury, “that tlic court was the judge of the law, and the jury exclusively judges of matters of fact, and it was the duty of the jury to receive the law as laid down and expounded by the court, and that the jury were not the exclusive judges of the law: Heldrthatin this charge, taken altogether, there was no error, although the court were of opinion the first of it was laid down too strongly. As the jury have the right, and if required byj'the prisoner, are bound to return a general verdict upon the issue of not guilty, they must necessarily in the discharge of this duty decide such questions of law as well as of fact as are involved in this general question, and there is no mode in which their opinions upon questions o£ law can be reviéwed by this or atty other tribunal.* But this does not diminish the obligation of the court to explain the law. The instructions of thecourt,in criminal cases, may safely guide the consciences of thejury, unless they know them to be wrong. When the jury in a criminal case undertake to deckle the law, in opposition to the advice of thecourt, they assume a high responsibily and should be very careful to see clearly that they are right. When a party was indicted for dealing faro, and the game played was denominated by some, forty eight, by others faro, and it was proved that it was substituted for faro by withdrawing from the pack four cards, it was held, if the principle of the substituted game was the same, and it was substantially the game of faro, the party would be guilty of dealing faro, notwithstanding such alteration in the game. Changes and modifications in the game of faro, which did not materially alter th'e nature and Charactar of the game, do not destroy its legal and statutory identity. The indictment in, this case was found several years after the passage of the act of 1829, making dealing at faro, felony. Upon this the circuit court charged the jury, that if thegame of forty-eight was substantially a different game from old faro, but was commonly called and well known by the name of faro in this State and at Nashville, at and before (he finding of the bill of indictment, it would be faro within the meaning of the law, if it was within the mischief, to reme* dy which the act was made:1' Held that the charge was clearly erroneous, The act of 1829, making dealers at certain kind of games, guilty of felony, is not, like the oidinary acts against gaming to be construed remedially. A statute was passed, authorizing the courts to construe all statutes against gaming remedially. At that time all kinds of gaming were indictable as mis demeanors The legislature subsequently, marie dealing faro and some other games, felony: Held, that it would not be proper to apply to the latter statute, *he rule of construction created by the fpruipy.

The plaintiff in error was indicted at the May term, 1832, of the circuit court of Davidson county, for dealing faro. The cause was tried at the May term, 1834, of said oourt, at which term the jury returned a verdict of guilty. A new trial w-as moved for and refused, and a writ of error prosecuted to this court. During the trial several bills of exceptions were taken to the opinion of the court in relation to the competency of jurors, from whichit appears, that Joseph Link, Charles J. F. Wharton, Anderson Tucker and Mathew Barrow, were put to the prisoner as competent jurors. Upon their examination they all slated in substance, that they had formed, and some of them ^ey ^Ia(^ formed and expressed their opinions as to the or innocence of the defendant: that they had formed such opinion from public rumor, and not from conversing with, any ofthe witnesses. Wharton stated that in addition to public rumor he had heard the circumstances detailed from different persons, but that they did not profess to be eye witnesses of the transaction. The jurors were challenged for cause by the defendant, but the court decided they were- competent jurors; whereupon the defendant challenged them peremptorily. The record showed that a traverse jury was made up, without the defendant having' exhausted all of his peremptory challenges. The defendant amongst other grounds of defence, insisted first, that he did not deal at any game, and secondly, that if he did, the game he dealt at was not faro, but a different game called forty-eight. It was proved that the dealing charged in the indictment, was done in a room in the house of defendant, that he was frequently in the room giving directions; that he furnished the candles, liquors, &c. And that upon one occasion, when the dealer appeared to be somewhat awkward, he took the cards from him with the intention of showing him how to deal, and made a turn or two upon the cards, and handed them back; that upon the turn ox-two so made by him, money was lost and won, though the witness stated that it was not the defendant’s intention,"as ho understood from what occurred, to deal for money. It was also proved that the game dealt was sometimes called faro, and at other times ‘.‘forty-eight”; that it differed from old faro, by having the four sevens taken out of the pack, and there being no “pot”, as it is termed, nor hockely nor splits. Numerous-witnesses were examined by the defendant, to prove the games different, who went minutely into a detail of the difference between the two games, in the manner of playing, in the chances, &c. The State also examined a number of witnesses to prove that the principle of the games were identical, that withdrawing the four sevens made it a stronger game for the dealer; it is not however deemed important to state minutely the testimony, as the opinion of the court was wholly based the charge of the judge. Amongst other things not excepted to, the court charged the jury, 1st. That “'the court was to be the judge of the law, and the jury exclusively the judges of matter of fact, and it was the duty of the jury to receive the law as laid down and expounded by the court, and the jury were not the exclusive judges of the law and the facts, except as the law was expounded by the court.” 2nd. “That if the jury should believe from the proof, that defendant, together with Moses Whitesides, did deal for money or bank notes at faro, or, if Moses Whitesides dealt the cards and the defendant did not himself deal, but was present aiding,, abetting, or assisting such dealing, that would render the defendant guilty under the law. If the jury believed they united in the design of dealing faro for money or bank notes, and that to prove this the jury must look to all the testimony, and if they believed the defendant furnished the houses, the cards, the table, the candles, or that he kept the game, paid and received money, these facts, if they existed were all circumstances to which the jury might look and regard as evidence to show such aiding, assisting and abetting.” 3rd. “That if the game played was substantially a different game from faro, and not a species of it, then defendant could not be found guilty; but if the game was not substantially different from, and was a species of faro, but differing in some particulars only, it would be faro if it was'within the mischief of the act under which he was indicted.” 4th. .“That if the game of forty-eight was substantially a different game from old faro, but was commonly called and well known by the name of faro in this State, and at Nashville, at and before the finding of the bill of indictment against McGowan, it would be faro within the meaning of the law, if it was within the mischief to remedy which the act was made.” 5th. “That the acts of Assembly against gaming were to be construed remedially and not strictly, and if the game of forty-eight was within the mischief and meaning of the act, it was sufficient to embrace this case, if that was the game at defendant played, or aided Whitesides, in playing or # 1 • * dealing.”- We contend that this judgment is erroneous in many particulars and should be reversed. 1st. The jurors Matthew Barrow and others, were clearly incompetent and should have been rejected. One great object injury trials is impartiality. To secure this, a certain number of peremptory challenges are given-to the accused, and certain causes of challenge exist, for which the jurors will be set aside if ascertained, without compelling the accused to spend his challenges upon them. He has a right to have a panel of unprejudiced and imparttial jurors. This he can never have, if a juror who has formed or expressed an opinion is ruled to be competent. It is no matter upon what data he has formed his opinion, if it be upon the swearing of witnesses, or their statement, he is not so incompetent as if upon mere idle rumors he had formed or expressed his opinion. 1 Yerg. Rep. 432: 6 CowenRep. 559: 7 do. 108: 1 John. Rep. 316': 1 C'owen R. 432: 1 Burr’s Trial 419: 4 Wend. 241 to 245. The disqualification attaches to the juror because he has formed and expressed an opinion; not to the means and manner of forming it. The law in such case presumes that there is- partiality or prejudice operating on his mind, and “that he will,” as Chief Justice Marshall observes, “listen with more favor to that testimony which confirms, than to that which would change his opinion. It is not to be expected that he will weigh the testimoney as well as one whose opinion is not made up in the case.” 4 Wend. 242, 243, 245: 1 Burr’s Trial 419: 1 Chitty’s Cr. L. 443: Bac. Abr. tit. Juries E. 5. 2nd. The judge erred in charging the jury that though McGowan may not have dealt faro, yet if he was present, and furnished candles, room, tables &c. to the dealer, it would be aiding and assisting, and constitute him a dealer within the statute. This offence is one entirely of statutory creation; and no person can be convicted of it, but he who is named. The 1egislature contemplated punishment to the person who actual-jy dealt, and not to an accessory, or aider and abetter. The act operates upon the person doing and not the thing done, consepuently he only who is named can be guilty. Thus in England it has been ruled, that where it is felony for one to enter a dwelling house and steal, no body being therein, without benefit of clergy; that one who is present aiding, to wit: standing- outside and watching for the other, is not within the act, and is therefore entitled to his clergy. The reason is that the act operates upon the person and not the offence. Cro. Car. 473: 2East Cr. L. 700: 1 Hale’s P. C. 527, 528: 11 Co. Rep. 37: 1 Hawk. P. C. 116, c. 33, § 98: Foster 357. So for private stealing from the person. 2 East Cri. L. 700: 1 Hale’s P. C. 528, 529. So under the statute against stabbing. 1 Hale’s P. C. 468, 527, 528: 4 Burr 2076. This construction is fortified by a reference to the penal code of 1829, (1 Hay. and Cobbs 252.) It will be seen by such reference that this- offence is created by the sixty-fifth section, aud that by preceeding sections, to wit: sixty-two and sixty-three, the only cases allowing of accessories and aiders and abetters, in which they are punishable as principals-are specified, 1 Hay. and Cobbs.252, § 62, 63, 65. 3rd. The judge-erred in charging that the act of 1829, (1 Hay. & Cobbs 252,) against dealing faro was to be remedially construed, and was embraced by the act of 1824, c. 5, (1 Hay. and Cobbs 132.) That act can have ño operation upon it. 1st. Because that act can only apply to laws then existing, or .which might pass, against gaming asa misdemeanor. 2nd Because no statute can be construed to control one that was not in existence at its passage, particularly when the offence is created a felony, and a severe penalty attached to it. 1 Saunders on Uses and Trusts 242: 19 Yin. Abr. 523: 11 Co. Rep. 27: 2 Ld. Ray 1028: 22 Yin. Abr. 210: PI. 7: 6 Durn. and E. 286. It would be pulling down the rule of law which requires that statutes must be construed strictly when they are penal, and putting an equitable construction upon this very penal act. The rule that penal statutes must be construed strictly, is too , v , , , , , , , , , . well establislied to be shaken, and the manner ot their construction is shown in 2 Wheat. 119: G Ter. Rep. 286: 4 Car> and p 572; i9 Eng. Co. L. R. 633. 4. The court erred in charging “that if the game played was a species of faro, and not the real game, it was within the act. There is nothing clearer than that the proof must correspond with the allegation. This charge destroys the rule. Thus this court at last term, held if the indictment charged a taking of money in usury and the proof showed a taking of .bank notes, the variance was fatal. State vs. McJiuly,- reported 7 Yerger 526. So in Johnson vs. The State, Mar. and Yer. 129: Garner vs. The State, 5 Yer. See 2 Wheat-119: 6 Term 286. This, though it may have been a species of faro, was not within the statute if construed according to the rules of law in reference to penal statutes. Trustees of Camp. Jtcad. vs. Martin and others at this term. Thus stealing a lamb is a species of sheep stealing, yet it does not support an allegation of stealing sheep. So decided in England. 5. The court erred in charging the jury, “that though the game played may not have been known and commonly called faro, at the passage of this act; yet, if it was generally known and commonly called faro before the finding of the indictment» it would he within the act of 1829.” It cannot be the law that an act not known, or a thing not called by the name used in the statute, can by subsequently acquiring the name used, become so highly criminal. Any game at cards now known may, by the operation of whim, caprice or fashion acquire the name of faro, and according to this construction would be within the act. That would be to make the statute act upon the name and not upon the thing. It would be punishing a man for doing an act which the legislature could not by possibility have been providing against. Such construction would be worse than the tyranny of Caligula, who declared penalties for violating laws which from the place in which they were published could not be read and known to the people. This rule of construing statutes is quite No man can be safe if such latitude is too severe and harsh, given in the construction of statutes. 6. The court erred in charging the jury, “that the court and not the jury was the judge of the law, and that they could only pass upon it as expounded by the court.” In this country the jury are the judges of the law and the fact. The fact that they are sworn to make a true deliverance between the State and the accused; that if they decided a* gainst the opinion of the judge, no new trial can be granted shows this incontestably. They have the power to render a general verdict of not guilty; and having the power they have the legal right, for in this case legal right and power are the same, as no tribunal can call them to account for the manner in which they discharge the trust. I think the rule to be, so far as the state is concerned, that the courtis the exclusive judge of the law, because, if the verdict is for the state, the court can control it; so far as the defendant is concerned the jury are the judges of the law, because the court cannot control their find^ ing, if against its opinion. The jury should not exercise this right rashly, but should listen with respect and deference to the opinion of the court; but when they believe the court to be wrong, should find against its charge. Unless this be so, great oppression might grow out of judicial power being vested in corrupt judges. 10 Pickering 496: State Const, art. 6 §5: 1 Hay. & Cobbs 404: Bill of Rights, § 6, 9, 10: 1 Hay. and Cobbs407: American Citizen, 269,271, 276, 277,279,280, 281, 282, 283,285,286,287; 288,296, 297: 1 Thom. Co. 500: N. 7: Kneeland’s case 25, 26, 27, 28 el Seq. 2 Wilson’s..Works 368, 369, 370, 371, 372, 373, 374: Er. skin’s Speech in Dean of St. Araph’s case, 219: State Trials 922, 923, 924, to 926, 927: Bearcrofi’s Speech, same case, 935: same book 971: Mr. Hamilton’s Speech 278, 285 in 3 vol. Eloquence U. S. Fries’case 2 vol. Chase’s Trial (Appendix:) Calender’s case 1 Chase’s Trial 188: 1 Chitty Or. L. 409: Dana’s Case 5 Munf. 363. Burke vs. Preston, Gil-R. 303. State vs. Mitchell, 5 Ferg.: 6 vol. American Jurist page 237 to 267. To deny that the jury are the judges of the law and fact, is to deny' the accused the right of full defence by counsel. if the jury are not to judge the law, counsel cahribt argue it bé-fore them, 6 vol. American Jurist 237 to 267 This right has never been denied even in England, except by the judges in the cases of libel, which were considered anomolous cases differing from all others. The Bill of Rights in our courts, § 19, gives the jury the right to try the law and fact in libel, as in oilier cases. who were appointed by the court to argue this case on behalf of the State; (the Attorney General not being competent from having appeared as counsel for the accused in the court below,) argued this case very ably and elaborately upon all the questions raised, but not having furnished any memorandum in writing of their argument, it is omitted.