The herald., 1895-12-06
GRAND JURY A LEGAL BODY
Validity of the Inquisitors Sis
tanned by Judge Smith
HIS REASONS ARE GIVEN
Holds That johnson Was Qualified When
His Duties Commenced
And That the Fact That lie Was Not on the
Assessment Roll When Listed Cuts No
Figure-Other Points Answered

OPINION III buc CdSb VI tuc ISoPiO NS'
Brady ct al, in which the grand jury had
been challenged, denying the motion to
set aside, as we'll as the challenge, to-
gether with the motion to dismiss the in
dictment and discharge the defendant,
and thereby sustaining the validity OF
that body. Much interest had been fel;
in the question, and the court room was
crowded when Judge Smith took his
seat and commenced reading his opin ion,
many attorneys being among the specta-
tors. Owing 70 the importance of the
matter, the decision is given in full, as
follows:
Tbe defendants were indicted by the
present grand jury, and now move the
court to set aside the indictments. They
assign many reasons as ground Tor
their motion, the principal one being the
alleged fact that grand Juror, one John
son, was not assessed on the last assess
ment roll of this county prior to the time
when the Judges. of the superior court
made up the Jury lists. January, 1855.
The question is novel one in our
state. never, l believe, having been
passed uponby the supreme court. Coun-
sci for defendants cited people vs.. Hen
derson, % Cal. R-i65. as bearing upon
this position: In that case the fact was
that at the time grand Juror was sum-
such at the time he was empaneled; but
it seems the defendant was in court with
counsel at che time the grand Jury were
empaneled and had opportunity TO chal-
Ienge the same, but neglected to do so,
and the supeme court says: "Concedlns
the point to be otherwise good the OBJ
lection came too Iate;' so that the point
AS to what effect the placing of such per-
son on the lists and the disability being
removed before he was drawn and sum-
moned was not involved in the case.
and indeed the phrase, 'Conceding the
point to be otherwise good, is quite
vague and may mean very little.
Counsel for defendants rely mainly
upon the North Carolina cases, and 1t
Will be necessary to examine these at
some length. The leading case cited is
that of state VS.. the Durham Fertilizer
company, decided Novem Der. 1892, and
found in Ii S. E. Rep, page 23l. 1t
must be borne in mind that the North
Carolina statute in regard to juries is
entirely different from our own. That
provides, "Ti;a commissioners for the
several counties shall on the first Mon
day of September, 1892, and every four
years thereafter, inspect the tax returns
for the preceding year for their county
and select for Jurors such persons only as
have paid their taxes for the preceding
year, and in the case cited above II ap-
pears that three OF the grand Jurors who
had found the Indictment had not paid
their taxes when they were drawn. The
grand Jury in that case was drawn Octo
Der 5, 1891; two of the Jurors thus in de-
fault paid their taxes October Both and
31st Of that same month, and one had
not paid his taXes at the time the indict-
mcnt was found, and the court very prop
erly quashed the Indictment. A further
objection was made to that indictment
that the names OF the grand Jury were
not selected by the commissioners at the
time prescribed by the statute; and on
that point the court says: THE statu
tory regulation of the names making up
the lists from which the several juries are
to be taken, or drawing the jurles has al
ways been held in this state to be not
mandatory but directory merely. Citing
many of their decisions. the court then
says: "ln the cases cited and in Others
the distinction is clearly drawn between
the objections that the grand Jury as
whole was not drawn and constituted in
the regular mode and those directed to
the competency of the individual grand
Jurors after the body is organized. Then
the three grand Jurors we're clearly dis
qualified because the statute made the
property qualification depend upon the
fact that at the time they were listed
they should have paid their taxes for the
previous year.
But observe the difference between the
n orth Carolina statute and our own. Here
the statute in a section under the cap
ton, Qualifications and exemptions of
Jurors section 19s, declares what are
the qualifications of Jurors" and among
other requisites says, assessed upon the
last assessment roll of the county on
property belonging to him, and the fol-
lowing section, 100, provides "a person
is not competent to act as Is juror who
does not possess the Qualifications pre-
scrib by the preceding section o. who
has been convicted OF malfeasance in
office or any felony or other nigh
crime" If there were no other section
prescribing the qualifications of jurors
this wolld seem TO be plain and settle
the contention against the defendant, but
the defendant lnvokes section 20j OF the
code OF civil procedure, which is as fol-
lows:
The selecting and listing snail be
made OF suitable persons and competent
to serve as jurors who were assessed on
the last preceding assessment roll OF such
county or city and county. In making
such selections they shall take the names
OF such only as are not exempt from serv-
Ing, who are in the possession of their
natural faculties, and not iniirm or de-
crepit, of fair character and approvod
integrity and of sound Judgment" 1t
will he seen from this section that the
judges in making up the lists OF both
grand and petit Jurors are requiI ed to
select those who are suitable and COM
petent, who were assessed on the last as
sessment roll, and also shall select those
only who are not exempt from Jury duty
and are OF lair character and approved
Integrity. Ii th3re was no other section
prescribing the qualification of Jurors
than this one, the question would be easy
Of solution, for these words are plain and
easily understood; but it must be OBJ
served that this last section. from the
connection with which il stands with
others, the subject matter about which it
treats does not intend TO prescribe the
qualifications of Jurors. 1t is under the
caption, Selecting and returning jurors
tor courts of record, and pOir Is out the
mode and directs the Judges in the dis
charge of their duties. 1t gives the di-
yection as to what class of persons they
may select from. 1t is merely the ma
ehlnery for obtaining persons ut is true,
suitable and com petent) to act as jurors
until they are sworn TO try case or per-
form the duties OF Grand Jurors and when
the time comes. then for the first time
their competency can be inquired into.
and at that time, must not
the test of competency be the one
prescribed i'll section 1859 supra? Ger
tajnly that section is plainly and directly
upon the qualification, unmixed with
anything besides; this language is plain
and cannot be misunderstood. In brief
10 not section 205 directory and not man
1atory? The statute says the judges sha ali
proceed OF make these jury lists the first
Week in January. Suppose they defer il
TO February. Could ltibe oontanded the
lists were invalid on that account? Ger
taiply not. in the North Carolina case
referred to, the commissioners deferred