As to the first reason assigned by appellant why the judgment in this case should be reversed
There would be no reason for the provision in the statute that depositions should be reduced to writing, and when by question and answer, as provided in Compiled Laws, p. 443, § 162; see § 2, p. 449. Nor for the further provision, that the same might be used before the grand jury; p. 449, § 209, unless the said depositions were competent evidence before the grand jury. And when the point is admitted that such depositions are legal and proper testimony to be used before the grand jury, the objection is conceded, for the defendant had no reason to complain because the grand jury did not receive all the testimony against him which they might have procured.
And as to the second reason assigned by the appellant whythis judgment should be reversed, on the ground that the trial jury were not drawn and impaneled according to law, in this, that no trial jury was drawn for the term of the District Court of Trinity County, at which this cause was tried, it will be seen by p. 355, § 16 of the Compiled Laws, that the Court may, when, from any cause, it shall become necessary during the term, order the sheriff, etc., to summon a jury, etc. The whole matter is left with the Court as to the sufficiency of the cause why he has made such order, and only abuse of discretion would be error. And here we would beg leave to suggest to the Court the method pursued in this case is the only practicable way of selecting a jury in the mountain counties, on account of the transitory and unsettled condition of society, and the great difficulty in finding persons taken indiscriminately from the assessment roll of the county.
And as to the third cause why the said judgment should be reversed, wherein error in the impaneling of the grand jury is assigned, no objection or challenge was made to the panel, and the offense is charged to have been committed on the 2d day of April, A. D. 1854, about the commencement ofa term of the Court of Sessions of Trinity County, the first Monday of that month being the day fixed by law for the commencement of said Court. The County Judge in that case could not have been advised of the necessity of a grand jury for this particular case, in time to have ordered one prior to the sitting of the Court, and therefore very properly followed the provisions of Compiled Laws, p. 354, § 11, in making an order for a grand jury.
The objection that the indictment was not properly certified from the Court of Sessions to the District Court, is not supported by the record. On the contrary, the certificate of the Clerk of the Court of Sessions appears full and complete.
As to the objection urged by the appellant, that it does not appear affirmatively from the record that the defendant was present during the trial: It is admitted that the defendant should have been present during the trial, but the statutes do not require that such facts should be entered upon the minutes of the Court at each meeting thereof. If the defendant had not been allowed to be present, he ought to have objected, and his objection should have appeared in the bill of exceptions. It was onlynecessary for the purposes of this appeal for a sufficient portion of the record to come up to enable the Court to decide the points taken in the bill of exceptions. Error in mere technical points or matters of practice, should appear affirmatively. (See Compiled Laws, p. 501, § 601. Any other rule in the present unsettled condition of our practice, would defeat the ends of justice and the proper administration of the law. In original trials, the accused should have the benefit of every reasonable doubt and presumption, but in all cases of appeal he could not. It is incumbent upon the appellant to show error affirmatively, otherwise the appellant might bring up such part of the record as would suit his purpose, and leave some material part thereof, for want of which the case would be reversed. But we contend that the record, taken as a whole, shows that the defendant was present during the whole trial.
JUDGES: Mr. Justice Wells delivered the opinion of the Court. Mr. Ch. J. Murray and Mr. J. Heydenfeldt concurred.
OPINION
WELLS, Judge
The appellant was indicted for murder by the Grand Jury of Trinity County, and the indictment was transmitted by the Clerk of the Court of Sessions to the District Court for said county. In the District Court, the defendant moved to set aside the indictment:
1st. Because the grand jury had no other proof before them, except the depositions of the witnesses taken by the Committing Magistrate, the witnesses themselves being within the county, but not having been called before the grand jury.
2d. Because the grand jury was not drawn and summoned at a regular session of the Court of Sessions, nor was any notice given of such drawing.
The Court overruled the motion and the defendant excepted.
No regular panel for a trial jury having been drawn and summoned, as required by law, for that term, the Court ordered thirty-six jurors to be summoned, which was done, and twenty-seven of them appearing, the Court caused their names to be placed in a box, of which twelve were drawn, to constitute the trial jury. The defendant challenged the whole panel, on the ground that the Court had no power:
1st. To cause a jury to be summoned under the circumstances; nor,
2d. To select twelve out of the twenty seven by ballot, to compose the trial jury.
But the Court overruled the challenge, and the defendant excepted.
The defendant was convicted, and has appealed to this Court. The first ground assigned as error is, that the Court refused to set aside the indictment, which, it is insisted, was not found indorsed and presented in the manner prescribed in the Act (section 278), and this is predicated upon the assumption that the indictment was found solely on the depositions of witnesses taken before the committing magistrate, while such witnesses were then present in the county, and could have been called upon to testify; and it is said, that in a case involving life and liberty, the humane rule of law, that the accused should have the right to confront his accuser, should apply. The answer is direct and conclusive. It does not satisfactorily appear from the record, that such is the fact, and even if it were, the objection could not avail. The grand jury is a secret, as well as a legal tribunal. But the accused never appears before it. His right to confront his accuser is preserved upon his trial, where he has every opportunity to examine the demeanor of the witnesses and to subject them to cross-examination; it matters not, therefore, whether the grand jury find their bill upon depositions or upon the oral testimony of witnesses; it does not affect the rights of the prisoner in any way; and I am of the opinion, upon examination of the statutes, that it was the intention of the law-makers to admit the depositions of witnesses taken before a magistrate upon a criminal charge, to be used before a grand jury. Such is the construction which must be given to section 278 of the Act, when considered together with sections 209 and 210 of the same statute.
The second point raised by the appellant is founded upon the exception raised to the trial jury, and we are referred to the statutes of 1852, p. 107, prescribing how jurors are to be selected and impaneled. The exception is not well taken. By reference to section 16, page 355, Compiled Laws, it will be found that full power is conferred upon the Court to enter such an order as was entered in this case. It provides that, " When from any cause, it shall become necessary during the term, the Court may order the Sheriff to summon, either immediately or for a day fixed, from the citizens of the county, but not from the bystanders, a sufficient number of persons to complete the trial jury, or form a new trial jury, as the case may be."
The next objection proposed by the appellant is that the indictment was not properly certified from the Court of Sessions to the District Court. This is not supported by any disclosure of the proceedings in the case on the record before us; and even should the fact be as stated, we would still adhere to the opinion delivered in the case of The People v. Thompson, at this term, post 238, for a like capital offense, by the Chief Justice, wherein he says:
" It is said the indictment was not transferred from the Court of Sessions to the District Court, in the manner pointed out by the statute.
" This objection was not taken upon the trial, and if it had been, we do not think it would have been material. The Court would have cured the error, by directing the Clerk to indorse the same.
" The 309th section of the Act Regulating Criminal Proceedings, provides: 'When an indictment is found in the Court of Sessions for murder, manslaughter, etc., it shall be transmitted by the Clerk to the District Court, sitting in the county, for trial, except,' etc.
" The Clerk of the District Court is, by law, the Clerk of the Court of Sessions, and the indictment found in the District Court, in the possession of the proper officers, would not be invalidated, because not indorsed by himself, as Clerk of another Court. The intention of the statute was simply to point out the place where indictments for a certain character of offenses should be kept, and were triable."
Another point insisted upon is, that it does not appear from record that the defendant was present at the trial, or at the rendition of the verdict. We think that sufficient is disclosed by the record to show that this, like many other points, is merely technical and evasive, to enable the accused to go unwhipt of justice.
The language of the Judge, when passing sentence, and to which no exception was taken, is a strong circumstantial proof to confirm the presumption that the defendant was present, and that all the legal forms required were strictly complied with. If they were not--if the prisoner was absent at the time of trial, or the rendition of the verdict, or the passing of the sentence, he had an abundant opportunity to prove it, and should have done so.
From a careful examination of the whole case, we have no reason to doubt that the defendant had a fair trial; that the Court and jury performed their responsible duties in a lawful manner, and that the verdict is correct. The objections urged with great skill and ingenuity on the appeal have failed to satisfy us that there is any error in the judgment, and it must, therefore, be affirmed.