State v. Woodruff

In a criminal prosecution, aner me ease has been committed to a jury, who are unable to agree on a verdict, the Court may exercise its discretion in taking back the papers, and discharging the jury, though against the consent of the defendant, and some of the jurors. able to agree have been ’ discharged by the Court, shall not exempt him beforeaiíother jury. That the defendant, in such case, has been put on his trial, and the jury not being The having a freehold estate rateable in the common list at nine dollars but not; actually rated, is not a qualification to vote in town-meeting.

In the Court belowj J- HIS was a prosecution before a justice, on the corn-plaint of a grand-juror, for unlawfully voting in the town meeting of Durham, on the 10th of December, 1804. The complaint stated, that the defendant, not being a freeman of the state, nor a lawful inhabitant of Durham, por a householder, “ and who had not, on said 10th day of “ December, a freehold estate rated in the common list at “ nine dollars, or personal estate rated in the said list atone “ hundred and thirty-four dollars, and who had never been, in any way or manner, qualified to vote in town-meeting, “ or thereto admitted, did vote,” &c. A conviction was had before the justice ; and the defendant appealed to the County-Court. The case was first heard in January, 1806 ; and the jury, to whom it was committed, after having had it several days under consideration, could not agree. The attorney for the State proposed, that the Court should take back the papers, and discharge the jury ; to which the defendant, and some of the jurors objected. The Court waited until some time in the afternoon of the last day of the session, and then directecl the jury to deliver upthe papers ; which they accordingly did, and the cause was continued, At March term, it came on again to be tried. | After the Íur>r were impannelled, and the defendant had pleaded Not guilty, there was an objection to the testimony, taken ore tenus, that there had been one trial, and that the defendant could not agajn be put in jeopardy; which was overruled by the court^ In the course of the trial, the defendant, to shew that he was qualified to vote in said town-meeting, offered in evidence a deed of a piece of land, dated the 13th of October, 1804, accompanied with proof, that he immediately took, and had ever since retained possession, and that the land was rateable at more than nine dollars in the common list. This evidence being objected to, by the attorney for the state, the court excluded it, on the ground that it was irrelevant, inasmuch as the land was not in the defendant’s list for the year in which he was charged with voting illegally. The jury found the defendant guilty ; and judgment was rendered against him. On a writ of error to the Superior Court, the judgment of the County Court was reversed, on the ground, that it is a person’s owning real estate to the amount of nine dollars, as rated in the common list, which qualifies him to vote in town-meeting, and not his being rated lor it, by having put it into his list. 1. The former proceedings in January, 1806, are relied upon, by the defendant in error, as conclusively evincing, either that the court had not jurisdiction, or were precluded from trying the case again. To this it may be answered, in the first place, that the objection was taken ore tenas, whereas, if available at all, it should have been pleaded.(a) It was a bar, or nothing ; at least, it was an exception to the jurisdiction ; and in any view of it, could not support an objection to the admission of evidence. Certainly, advantage of a former acquittal could not be taken ore terms ; nor could a former conviction be thus available.(b) Waiving, however, the irregularity of the objection, in point of form, what are its merits ? The question is, could the.first jury be dissharged, because they could not agree on a verdict, and the case be again heard by another jury ! It is a fair presumption, that the first jury were not dis-tharged unnecessarily. “ We must,” says Lord Ellen-bouough, “ give credit to the court below, for having exercised its jurisdiction soundly.” (c) Besides, it expressly appears, that the jury were not discharged, until the last day of the court. : That the jury should be discharged, where they have long had a case under consideration, and have been unable *to agree, is a matter of such general convenience—of convenience to the prosecutor, to the defendant, to the court, and to the jury,—that nothing but the most settled rule of law ought to prevent its being done. The dictum in Car-thew, (d) viz. That at common law, the jury cannot be discharged of the issue in any case, without the consent of the prisoner, nor in capital cases, with it, may be urged against the power in question ; but that dictum, if ever uttered, is false in both its parts. That the jury may be discharged in capital cases, see 2 Hawk. P, C. 622. sixth edit. 1 Wils. 157, Kinlock’s case, S. G. Foster 16. Foster 22, IVedder burn’s case. That in cases not capital, the prisoner’s consent is not necessary, see Dr. is? St. 171. T. Raym. 84, Ferrar’s case. Foster 27, 28, 31, 23, 33. 2 Hawk. P. C, 622. In most of the cases, in which it has been held, that the jury could not be discharged, the only reason for discharging them was, that the prosecutor was not prepared with evidence ;—none are cases where the jury could not agree. X It maybe objected that one cannot be twice tried, or put on trial, for the same offence. But such is not the rule. It is,“nemo bis fmniri” in any case, (e) nor be twice put in jeopardy of his life. (f) The defendant in this case was . not •twice tried ; to try is to bring to the test ; and this cannot be done without a determination of the suit. This is a principle sanctioned by the practice of ail courts. A right to discharge the first jury implies, that the defendant may be twice put on trial.'(g) .A'eve trials, in cases of misdemeanours, have been granted against the defendant; (h) and/or the defendant, for any reasonable cause, (i) / The point now under consideration has undergone a very full and able discussion in the state of New-York ; and the right to discharge a jury who are unable to agree, and af-terwards bring the defendant to trial before another jury, has been asserted and established. (k) 2. But the principal question, is, whether the deed of the land, not rated in the defendant’s list, was admissible ? It is said, that the land need not be rated ; if rateable, it is sufficient. Certainly not. The reason of the law forbids this construction. It undoubtedly was intended, that those who vote to tax others should, uno jia'u. tax themselves. Thus, exempts may not vote. (l) The having taxahle property is a necessary part of the qualification, but the governing reason is the having it taxed, or rated. This is the security af voters, that no man can lay a burden on his co-voter, and be free himself. The combined reason, then, is this ; to secure the independence of voters, and to make their acts ai-feet their interest. The statute relative to the admission of freemen, (m) requires personal property actually rated in the voter’s list ; and so has been the practice. The statute concerning societies (n) has a similar requisition. That relating to towns (o) requires, that a person have so much i: besklcs his person," rated in the common list. By the expression “ his person" is meant his poll tax, and identifies the list., in which the rating is to be found, that is, fñs personal list. Personal estate in another’s list is, prima facie, a fraud, and of very suspicious aspect. In this method, any man may be qualified to vote ; the law would be at once perverted, and fraud might be practised without let, and with impunity. By shifting of property) how many persons might be qualified, in one year, to vote in our town . meetings 1 It may be objected, that by the decision of the Superior Court, (p) the property of jurors need not be rated. The answer is, 1. The Statutes are nof in fiari materia. Jurors are not voters of taxes. 2. Their independence and their verdict are not influenced at all, by the actual rating of their property,but by their having property that is rateable. 3. The opinion, in the case cited, is obiter only ; and if the juror had no estate, the exception, as a matter of arrest, would have been groundless. It may be said, that the deed was relevant as to part of the qualification ; that is, it is proved, that the voter had property. But the reply is, the qualification was one- combined proposition, consisting of two facts, one being dependent on the other; and unless both facts existed, where was the relevancy ? It would be like a grant of reversion without at-tornment, or bargain and salé without enrolment; or like an execution not recorded. It presents a question of sheer law * 1 on the insufficiency of evidence, which manifestly weighs nothing, and which the Court ought to guide. In England, it would be a ground of non-suit, (q) It may be said, the Court would, in this way, prescribe the order in which the testimony shall be exhibited. The decision of the Court will support no such position. It declared, that it was no testimony whatever. But the Court may, of right, prescribe the order of exhibiting testimony, as it saves time and controversy ; because, if possible, the Court will, for the benefit of all parties, decide the points of Jaw. Indeed, a deed of property not rated, is not in proof of the issue. For the issue is not, whether the defendant had estate, but whether he had estate rated in his own list. after stating the proceedings before the County Court, and the question as to the power of the court to discharge the first jury, and bring the defendant to trial before another jury, submitted the point without argument. As to the other point, he contended, that a person who, at the time of voting in town-meeting, had either a freehold estate of nine dollars, or personal estate of one hundred and thirty four dollars, according to the rate, at which property was, by law, to be put into the list, was a voter, whether the properly was contained in his list, or not: That a freeman, being by this act entitled to vote, though a pauper, serves to shew, that the legislature did not intend, that liability to taxation should be an inseparable incident to the right of voting in town-meeting : That if the legislature had this intention, the amount of property, to entitle a man to vote, would have been the same, whether real, or personal ; whereas now, the person whose list would amount only to nine dollars, if he has a freehold, is entitled to vote, though if he has personal estate only, he must possess sufficient for a list of one hundred and thirty four dollars, the freehold voter paying only about one fifteenth part of the amount of taxes paid by the voter whose privilege is founded on personal property: That the property required in a voter is so much as to shew, independent of the inequality mentioned, that the principle of liability to taxation, contended for as the rule of construction, is erroneous ; and that the legislature intended, that those should be admitted to vote, who, by lawful inhabitancy, and the possession of the property specified, at the time of voting, exhibited that evidence of steadiness, industry, and economy, and of their interest in the welfare of society : That the list of a person is not the prescribed evidence of the property, by which he is entitled to vote: That the omission by a person, to put property into a list, may be presumptive evidence, that he did not own it at that time ; but that the putting of property into the list, being his own act, and for his own benefit, is no evidence, or very slight evidence, of ownership of real or personal estate, at that time, and a fortiori of owrtersbip at any Subsequent period : That a pauper, by giving in a list, might thereby, on the principle contended for, entitle him-seii to vote ; and a person who had become a pauper, at the time of voting, might, by a list given in when he owned property, which he afterwards lost or sold, be entitled ts vote, and impose taxes, which would not affect his interest : 1 because he would have none to be affected, which, at least, js to oppose one of the principles cantended for by the counsel for the plaintiff in error, by another which is much insisted upon by them: That whatever property the person may have had, when he gave in his list, he must have property of the kind and amount specified in the act, as well as be an inhabitant of the town at the time of voting ; and that, therefore, many persons most interested in regulations made by towns cannot vote in town-meeting, if property owned by them, though not in their lists, does not qualify ; as if two of the wealthiest inhabitants of a town exchange or sell their farms, or other property comprized in their lists, neither of them can vote in a town meeting subsequent to the exchange or sale, until the anniversary of giving in lists ; though the property which they have, at the date of the meeting, and by which only they are entitled to vote, is not in their lists, though, at the same time, they are liable to be taxed for the property, by them sold or exchanged after it had been put into their lists : That the act relating to freemen, in respect of that qualification which is founded on freehold estate, which is the same subject, does not prescribe, that it should have been put into the list of the person claiming to be made free, nor even the act in addition to it ; (d) nor do the phrases or spirit of either of those statutes countenance the idea, that those only shall vote, who, at the time of voting, are liable to be taxed for the property by which they are qualified ; but other characteristics of voters, viz. inhabitancy, possession of property, “ quiet and peaceable behaviour and civil conversation,” are rendered indispensible, by explicit provisions : That the difference between a freeman, and a town-voter not a freeman, is, that the right of the freeman is permanent, but the right of the town-voter fluctuating as his property : That, at the time of his voting, he must possess a freehold, as the freeman must, when he is made free: That the law respecting societies, (e) relied on as explanatory of the one under consideration, contains nothing more explicit on the subject of inquiry, the qualifications of voters founded on property being in that act comprised in these two phrases, viz. “ unless such person hath a free- “ hold in the same town or society, rated at nine dollars, or “ one hundred and thirty four dollars in the common list :” That though there is a subsequent provision. (f) that those “ who are by law exempted from the payment oflaxes, for “ the support of the worship and ministry of the Presbyte- “ rian, congregational, or consociated churches, in this State, “ &cc. on account or by reason of theirdissenting from the way “ of worship and ministry aforesaid, shall not act or vote in “ any town or society meeting, in those voles which respect “ or relate to the support of the worship and ministry afore* “ said There is no provision, that he who has the freehold or personal estate by the statute required, shall not vote, if he has no personal exemption ; but if any inference, applicable to this subject, can be made from this act, it is, that all who have the amount of freehold or personal estate required muy vote in any town or society meeting, whether they are liable to pay taxes for their property or not, unless they are exempted from the payment of taxes “ on account “ or by reason of dissenting,” &c.—That the statute respecting jurors, in which the phrase is ⅜ shall have a freehold es- “ tate rated in the general list at nine dollars, or more,” (g) has received a construction correspondent to the principles notv contended for by the defendant in error (h) ; and that it is immaterial to the merits of the decision, that the objection, which it was calculated to remove, was groundless, and not presented by the facts :—That though jurors are not voters of taxes, they are to have one of the qualifications of voters, viz. a freehold estate rated in the general list at nine dollars or more ; and of this provision the judgment of the Court is “ This sum is the rule given by law to ascertain the “ quantity of estate requisite to qualify a juryman, but it “ doth not mean to make it a requisite, that it be actually “ rated or put into the common list That conformably to this decision, and the preceding remarks, the opinion of the Superior Court appeared to be correct* that “ the deed and “ testimony to prove the quantity of real estate said Wood- “ ruff owned, at the time of voting, was relevant, and ought “ to have been admitted ; for it is a person’s owning real es- “ tatetothe amount of nine dollars, as rated in the common “ list, which qualifies him to vote, and not his being rated “ for it, by having put it into his list (i) And that, therefore, the judgment of the Superior Court ought not to be reversed.