Johns v. Hodges

Ritchie, J., delivered the opinion of the Court. On the issues submitted to the jury in this case they found for the defendant in those relating to the execution of the several alleged wills and codicils of John T. Johns, and in those presenting the question of undue influence ; and found for the plaintiffs as to those presenting the ques ²²⁰ tion whether, at the time of their execution, the said Johns was of sound and disposing mind, and capable of executing a valid deed or contract. After the verdict was rendered, the defendant, discovering that two of the jurors were under twenty-five years of age, on the ground of this want of proper age and his previous ignorance of it, filed a motion for anew tidal, and also a petition that the Court refuse to certify the verdict of the jury to the Orphans’ Court, because void and illegal. The Court refused to grant a new trial and also to grant the petition, which it treated, as in the nature of a motion for a new trial upon the ground that the objection was not taken in time.

In the course of its opinion, upon the point presented, the Court forcibly remarks: “It was competent for the defendant to have made the proper inquiries, and after having satisfied himself on the subject, to have made the objection before the juror was sworn, but this he neglected to do. He waited until he had lost his case. If a party to a suit may omit to make such inquiries until after a verdict has been rendered against him, and may then set it aside on discovery and proof of the existence of a good cause of challenge against any one of the jury, it would introduce an additional element of uncertainty in the administration of justice, and lead in many cases to great and unnecessary delay and expense.” The defendant could not but regard the Court’s dealing with the petition as a motion for a new trial, as giving it a liberal effect; for if taken to operate as a motion in arrest of judgment, as such a motion must be based on matter appearing in the record, the alleged disqualification not appearing therein, it could not have been entertained. These applications to the Court being an appeal, in effect, to the discretion of the Court to grant a new trial, the exercise of the Court’s discretion is not a .subject of review in this tribunal. ²²¹ If, however, the petition not to certify the verdict to the Orphans’ Court was a proper proceeding, or could be considered a motion in arrest of judgment, neither of which we concede, we are clearly of opinion that the weight of authority, especially in the modern decisions, is that disqualifications in a juror, of the nature of that in the present instance, must be taken advantage of before the rendition of the verdict.

The usual method is by challenge before the juror is sworn or the trial begins. When this course is pursued, if the Court improperly refuses to sustain the objection, the party prejudiced may save his rights by proper steps on appeal. It is true that circumstances may exist which might justify the Court in setting aside a verdict for a disqualification the subject of challenge, but at that stage of the case, as a general rule, the matter is wholly within its sound discretion. Under our present jury system, while the law aims to exclude persons under twenty-five years of age from serving on juries, from the nature of the methods prescribed by the statute for drawing a jury, no certain means are provided for the absolute exclusion of such persons.

The presumption arises, therefore, not that the officers charged with the duty of preparing the lists have wholly succeeded irx securing those free from all statutory disability, but that they have succeeded so far as diligence and good faith within the scope of their opportunities have enabled them to do so. That the officers charged with the selection of the jury will endeavor to discharge that duty according to law is an obligation not peculiar to those who provide the jury under our present system; but has been incident to the summoning of jurors from time immemorial. But the presumption that jurors only have been provided who have the proper legal qualifications has not been of that character as to render needless the right of •challenge. The right of challenge itself is a safeguard ²²² provided by law in contemplation of the contingency that the officers whose duty it is to select only qualified persons have failed in the. performance of that duty.

It is a means specially provided hy which a party to a suit majr readily and effectually protect himself against any oversight or neglect committed in the original selection. That men may he, and are, summoned, who are not contemplated by the law as the subjects of jury duty, is common experience. And as the consequences of such an error can he readily obviated hy inquiry and challenge when they come to he sworn, it is laches not to avail of so simple and efficacious a means of protection, where prejudice is apprehended or may be rendered impossible, as examination and challenge before the jury is empanelled. Not to exercise this right, when so simple a matter as the age of the juror is to be ascertained, or where he resides, hut to proceed to trial uninformed, and then endeavor after verdict to avail of a defect in these respects, would he not only to entail a loss of time, labor and money that a little diligence at the outset would have prevented, hut to offer an inducement to suitors to await the verdict before questioning the qualification of the juror, that, if favorable, the objection may be suppressed, and if adverse, that it may then he called into requisition.

No such lottery is to be encouraged. Among the numerous cases which decide that what is cause for challenge cannot be relied on to set aside the verdict, if the right of challenge has not been exercised, are Minna Queen vs. Hepburn, 7 Cranch, 290 ; Hollingsworth vs. Duane, 4 Dall., 353 ; Amherst vs. Hadley, 1 Pick., 38 ; People vs. Jewett, 6 Wendell, 386 ; United States vs. Baker, 3 Benedict, 68; Gormley vs. Laramore, 40 Ga., 253 ; Wassum vs. Feeney, 121 Mass., 93 ; Rex vs. Sutton, 8 Barn. & Cress., 41 7. The fact that the party was not aware of the disqualification when the jury was empanelled is not material; ²²³ because he might have known it. In the cases in 4 Dall., 3 Benedict, 121 Mass., and 40 Ga., just cited, the disqualification was not known when the juror was sworn.

The case in 121 Mass., was very similar in its facts to those relied on by the appellant. The objection was to the infancy of the juror, which was unknown to the defendant until the time of making his motion to set aside the verdict. Grav, O. J., in delivering the opinion of the Court, fully reviews the decisions bearing on the subject. Lord Tenterueít, in Rex vs. Sutton, goes so far as to say: “I am not aware that a new trial has ever been granted on the ground that a juror was liable to be challenged, if the party had an opportunity of making his challenge.” In the case of Green vs. State, 59 Md., 123 , which was brought up on writ of error, a motion in arrest was made because two of the jurors were over seventy years of age.

The Court there say: “According to all the authorities, an objection of this character should have been" made at an earlier stage of the cause to be of any avail;” citing 1 Bish. on Crim. Proc., 3rd Ed., 886, and a number of adjudications to that effect. The only exception as to the evidence taken by the appellant was in connection with the testimony of Beekley, a witness produced by the defence, to show the mental capacity of Johns, from his intelligence in business transactions. The testimony consisted in the relation of a conversation between the witness and Johns, in which Johns asked witness the law with regard to obtaining money under false pretences, explaining that a certain Dr. Henry had borrowed some money from him, and when pressed for payment had said that Johns ought not to be uneasy, as the stock in his drug store was sufficient to cover the claim.

Johns went on to say, “When I came to inquire I find he don't own that stock.” Defendant then offered in evidence a bill of sale from Dr. Henry to his father, the offer being made “for the ²²⁴ purpose of- showing a business transaction, as narrated by Mr. Johns, and the correctness of his position and views, with reference to that transaction.” An objection was made to the admissibility of this evidence, and the objection being sustained, the defendant excepted. -The defendant continuing his examination asked the witness, “I understood you to say that he found that this man did not own the stock of goods in his drug store ?” to which witness replied, “That is what he stated to me; he did not say it was a hill of sale or anything else ; he said- U find he does not own it.’ ” The witness added nothing more in this connection, and after detailing other facts in the history of their intercourse, expressed his opinion of Johns’ competency to transact any