New-York tribune., 1867-06-13
NEW-YORK, THURSDAY, JUNE 49, 1867

honest and upright men who entirely indifferent be
view that Challenges were permitted TO be made, either
e sGTay or to the pol" and either by PInse OF S
ard many other advantages, given by the common
law law 70 the prisoner exclusively and nothing 10 tho state
| ioihahties OF the common law were invented SIMPLY
% SSag purpose m Just q demands egfTds uro1 5oS 1Sc Re % H
offender against society. IL is az though such
by which the accused is to derive every advantage and
nave every means to assist in setting him at large WITH
concur with Chief Justice Gibson OF Pennsylvania in the
case OF the Commonwealth agt Jone d. Matt, ts5 IN
posed by the legislature ought it, perhaps, to be de-
sired by the phianthropst 1t is not easy to discover
conclusive reason why the punishment OF the feon ought
tendorest sympathes, why the laws ought
TO be effectively construed purpose TO rob the exeeu
might be an achievement TO boast Of but we are told at
The mitigation of our penal code that the certainty Of
conviction TO be expected from mildness Of punish
ment would more than compensate IN i!s
s deter by W its terc 'f II It be eT S'h INDUCED s0re
and certainly cheaper way of obtaining the end would
be to nave no prosecution az all But ts one that would
be found to III the state OF the times Why
then should te prisoner nave more than seryest speak
ns OF Ine 70 give nm iar ta ana ms 20 per
secured to him all he had right to require II must nave
have fair trial too Let us now see whether the case
of oConnell ag the Queen, tried in 1874 If one which
ought according 10 the counsel Of the prisoner at the
bar TO accept conclusive upon the question now be-
| fore us. In that case, by 3d aud Ah william 4th,
chapter 81, and by 4th and 9Th william 4th chapter
= certain provisions made regulating the mode
N which certain books should be prepared rosn which
the Sheriff required to make selection OF Jnres In
the preparation of one or more OF the lists from which
these Jury books were made number OF names oi per
qualified jurors omitted challenge to this
array was made In this case OF the ground of the oms
SION and IL held that such commission IN one Of the
preliminary lists was not sufficient cause OF challenge
10 the array But that by means the present case
10 make the at bar similar TO that Of OConne and
mhg within the ruling IN tat case IL wOhu DC hcces
aIy that should, ia the law for rsnnonngJnries
have incorporated provision requiring that the three
officers who stand in the place Of the sheriff should have
repaTcd their respective lists from the list OF the asses
or other oicers and that in making the Lists
OF said other officers some negligent or Fraudulent oins
should have occurred. IL may be admitted without
any prejudice To the motion in this ease, that the oms
sion 10y such rather officers, TO make com
pete list from which the list or Jury book IL we may so
term n, used by tho Register ana clerks IN oiner 70
pIorln mem as 10 VINO AZ tho pers1ppns psaiy
qualified jurors IN their respective jurisdiction were
tis motion Ana YET am ireo 20 say, W. my ollnon .
m gt to be sufficient But admitting II were not II is
very different from the before us Here Con
gtss requires that We combine the lusment oi lni.o 70
officers n selecting the persons of whOn me jurors are 10
hr composed Each OF these officers ~ 10 Oe guard over
the othertwo 10 prevent him from pcrpetraung wrong
a-usi indi, duas or the community NY putting IN tho
uN from which Jurors fog whole year are 70 be TAKEN
n al The C"GriSthc names oi persosNho are 1squ
other from want of mental capacity moral rcctltnde
sa,go n ore Of these oif1ers AZ Mr. Douglass on the
0ccon Of filing the Jury box in February Esl should
oNcrcs" exclusive Judgment IA ihe selection OF -" OUT
oi the 80 names pm ~ hc p"H te seguuJ a., ~iLa
ress sought by the act to throw around me Soeeto
| Of Jurors not worth tg, ana me law
| Vas not worth the time consumed 10 ~ passage
Nj Douglass may be, and doubtless -, an honest, Ihf
i
mNcd that account, for cannot tell how onf mo
dice may bo continue TO bo hllcd ny such men II was
Srn fotn rIryng ont their dishonesty pre- udces OF
partaty and We have right relax the law because
N.l - ndivdnas have a rght To exact rigid eompn.
ince with the requirements OF ie law ana Dc ohy way
/ ~ secure a fair and imputa. verdict both 10 thy
/ public ana the prisoner, IN this case 9h ia hli
/ other eases. is that the law be heey'
fairly and lupaItialy executed. Ia al ~ IcqnIemeDts
Jhe three on ers specified in tie Of Congress stand
m the place oi tho Marshal Sheriff Jurics' VINO arc
sunnoacd to Try cases IN This Court must not ony oe
summoned properly but must be- selected ~ nOedence to
the requirements 1f the laws The case oi tonne eau
where mere az this day considered ~ 81 mere
secondary portancc wien compared IN ne substance
OF the law IL any Partially Or default III the Sherh OF
hs dcpdty M Arranging The panel gives ctheI paly me
-t TO challenge the array ~ = tnaquptedy w ,w
y" IT, ,r,t qpte,r bc rond cause of challenge 10
a sh,r' IuI, , ste of Nm YorS II has been held IN
tr c,sc % Gardner agt. Turner ~ Johnson page aH
iIt lie drawing Of 2? names by the clerk from the Iy
- scaJ a. - th. itufu,cr required hy law. and the
secing by hun Of the ~ aud ms direction u
ssaas t. a. %oaid sustain IL : Challenge array
eT eIe ds,r,s in error & R pafRcrs = Umial Re
poris Icc li-. twas held that nasinuc as the DISTRICT
Attorney required 10y statute 20 Issue hs prccept of
.,,mnolng tho petit Inry, a Jury summoned by tie
shcrif itbOut such prccp was wrOngiuY summoned
sni he judgement Of conviction reversed IN the
stat of Delaware prior 10 the year 1850 the law regnl
oyer and Teunner the jury should consst oi 90 uIors
| Who wcro summoncd 70 attend the Court OF
4 fae
specially summoned for the Court 81 oyer and Ienine
which Courts were held al the same time lyVc same
Judges, WITH the exception lhal ~ inc eases oi Oy w M
our of tie law judges sat together Instead o TIE thte
who held the Court Of General SESSIONS ~ tc Cas. U
The state ag John Wndcr 9th Han. bl2, instted ioI
the uur,r u his wife. which tried ia 1880 before
very able bench. and by counsel distinguished io thtf
learning ana ability On either side-,a case wblch wac
,,iy arl,ed and onsidcred-i' decided that mas
much n the act " Assembly provided ioi Tue So Jurors
sumnoued for the Court OF General Sessions Ahou aso
be- summoned TO aendupon the ConI. o Vy'I anu & lo,
,.r and a. the General Sessions Jurors had not ueeh
so snmoucd attend the Court OF oyer ana ItihheI
although they there IN ttenlaneethe mere ialu. p
th n their summons notice 10 atenu the
CONT oi oyer and Iernlncf was suii,'eht Sioa mi
which In quash tile entire array ana wa dohc 'Seoi
lngiy. II would seen at first view mat the ohiienpo @
u,on such grounds IN either 0l these elser W"s az "
flou merely sticking IN the bark ana yet su'h y ~ -
fnl regard winch courts IN tins country entertain III
rcsI.c the selection oi Jurors, ana tho y. "
f. J muar al tral either side, that thoy even re
cue strict compliance WIN Tue very IeteI ol ',o -"
NJ matter from which side the challenge may bc moved
4, int A. mporant 10 haze fairness and importantly
mon Tie one SIDE as lhe other, otherwise the trlai OF
c.nina, however deep deep ,hroocb ln'aSSh Which H his
enlargement s procured. II IL be important 10 on
serve the mere forms ~ the law II is III my OPINION o
,fs snletantinl requirements Believing therefore that
lie substantial requirements Of the act of Congress III thls
ca.e providing for the selection OF air ana Phruh
Jury have not been complied Win, po mon ,hc
poigl and that there has been graIe uclau,. I IV az
part OF those officers whom mar aet nas ~ h Item
tLr place Of the Marshal for me purpose ol hniue @
c.efce united Judgment IN the selection OF an lnc Pcl
sons whose names are 70 go IN ,e y in ms % ease
M consider the fact that the present pahcl were I'M
nrcplly drawn by the Clerk ot Georgeto" VINO hn no
it tG put his hand into the box, because the opeSuoh
,,1|h hay, allowed lies even deeper than tlat III IT,
ncfore ordered by the Court that the present panel be
set aside and that the Marshal OF tne pT.S T a.. 'o'
'che Indge subsequently said his order was hat the
Marshal now summon 90 jurors IN attendance IN oped'
| cucc 10 former summons. - 81. H.. 49,,
and requested repair TO the Marshall Qe to reeeNe