Avirett v. State

Robinson, J., filed the following dissenting opinion: I cannot agree with the majority of the Court as to the construction of the jury Act. I cannot agree, because the construction now placed upon it, is not only against the uniform, practice, that has existed in this State ever since it was passed, a period of five and twenty years, but against, it seems to me, the letter and the spirit of the Act itself. One might infer from the argument of counsel that the Act was passed solely for the benefit of Alleghany County, and that its construction was to be governed by conditions existing or supposed at least to exist in that county. It is an Act however, providing the mode and manner for the selection of jurors for each and every county in the State, and like all other statutes it is to be construed according to its plain import and meaning, bearing in mind the object and purposes for which it was passed.

Now what are the provisions of the Act ? It provides that it shall be the duty of the Judges of the Circuit Courts for each of the counties, in the presence of such members of the Bar, as shall think proper to attend, to select from the tax list and poll-books of the several election districts of ,the county, a panel of two hundred prisons, the said panel to be fairly and impartally selected, with special reference to the intelligence, sobriety and ⁵⁴¹ integrity of such persons, and without the least reference to their political opinions. It further provides, that the names thus selected shall be written on separate ballots and these ballots shall be put in a box, from which shall be drawn, one by one, forty-eight ballots, and the names appearing on the ballots so drawn, shall constitute the grand and petit juries. Now I agree that the Judge himself and no one else is to select the panel of two hundred persons.

I agree too, that this selection is to be made publicly, in the presence of such members of the Bar as may think proper to be present. But I cannot agree, that the tax lists and poll-books “are the two exclusive sources from which the Judge can procure the names to be placed in the jury box.” These two sources merely show who are voters and who are tax-payers. But these are not the only qualifications prescribed by the Act. On the contrary, it provides in express terms that the panel shall be selected “with special reference to the intelligence, sobriety and integrity of the persons selected.” And however wide may be his acquaintance, it can hardly be presumed that a Judge can from his own personal knowledge determine the qualifications of the five thousand persons in some counties and fifteen thousand in others, whose names appear upon the tax list and poll-books.

In fact, the Court say, a Judge may very properly, and from the nature of the case, must often inform himself by inquiring as to the qualifications of the persons selected. But he cannot request persons, who may be familiar with the people living in their respective neighborhoods to furnish or suggest the names of persons qualified in their judgment to act as jurors. Not that the statute so forbids, for it is entirely silent as to the mode and manner by which the Judges are to inform themselves as to the qualifications of the persons to be selected. ⁵⁴² But because it is said, that the names thus suggested are not names selected by the Judges themselves. Now, if by this it is meant, that they are not names selected by the Judges from their own personal knowledge we agree, but at the same time they are none the less the selection of the Judges though made upon the suggestion or information of others.

A Judge is in no manner bound to accept the names suggested; he may upon consideration accept all, or some, or reject the list altogether. Then again it is said it might afford an opportunity “for the cunning, the crafty and the unscrupulous, to secure the selection of a venal, a corrupt or pliable jury.” These are evils certainly to be avoided. But this objection assumes and must necessarily assume, that a Judge would request or accept the suggestions of the “cunning” and the “crafty.” This it seems to me is rather a violent presumption. On the contrary, is it not fair to presume, that a Judge would take to his counsels, persons of character, well known to him, and upon whom he could confidently rely for impartial and independent advice ?

But, be this as it may, these objections, imaginary at the best, it seems to me, apply with equal force in all cases where a Judge finds it necessary to inform himself as to the 'qualifications of the persons to be selected by information derived from others. Suppose for instance, and we must deal with this matter practically, he takes a list of names, and upon inquiry he is informed that A. B. C. are qualified jurors, but that D. E. F. are not, and upon this information the former are selected; is the selection thus made by the Judge any more his own selection, than if the names had been in fact suggested to him? Would not “the cunning” and “the crafty,” have the same opportunity to mislead him, and to secure a corrupt jury in the one case as in the other? And to hold that a Judge may inform himself by inquiry, but that he cannot request others upon ⁵⁴³ whom he can rely to furnish or suggest to him the names of persons in different parts of the county possessing the qualifications