State v. Monaquas

May Term, 1805.

At this term the prisoners were again set to the bar, when the honourable George Jones, judge of the Superior Courts of the Eastern Districts of this state, deliyered the following opinion :

In considering the objections of the prisoners in arrest of judgment, at the last term, the second objection was overruled : for that if they had wished the liberty of challenging peremptorily each twenty jurors, they should have claimed that liberty when set to the bar to be tried ; but having agreed in their challenges, they could challenge but twenty in the whole, and one jury was therefore rightly sworn and charged with them. Fost. 16. Kelyng, 9. 3 Salk. 81.

The first objection I considered as an argument of some weight, and my reflections have since confirmed that opinion. I can find no decision in the authorities on that subject; but this may proceed from the system and regularity of the courts whence we seek for precedents : for in those, it is made the duty of the clerk to record the prisoner’s plea, and on the general issue, culprit to reply. By this replication, the king and the prisoner are therefore at issue. 2 Hale, 219. 4 Blk. Com. 339. None of the statutes of jeofails extend to indictments, and therefore a defective indictment is not aided by ver-diet. 2 Hale,193. And, says the same authority, in favour oflife, great strictness have been, in all times, required in points of *23indictments ; and the truth is, that it is grown to be a blemish and inconvenience in the law and the administration thereof. More offenders escaping by the over easy ear given to exceptions in indictments, than by their own innocence.

It appears to have been the uniform practice in the courts of this state, for the attorney general to state the prisoner’s plea in the indictment, and to add a similiter in abbreviated terms. And from the authorities cited, it would seem, that in indictments, a strict adherence to forms is required.

But a record of the issue, however abbreviated, appears to be indispensable : for the law allows many pleas by which a prisoner may escape death, but only one plea in consequence whereof it can be inflicted, viz. on the general issue of not guilty. After an impartial examination and decision of the facts, by the unanimous decision of a jury, I may have been disposed to view this objection in its strongest light, in favorem vitae; but the opinion is the result of my best judgment.

The motion in arrest of judgment, is therefore sustained ; and it is ordered that the prisoners be discharged, upon payment of costs.

Upon the motion of the usual proclamation, the attorney general stated to the court, the prisoners were also charged with a robbery on the highway : whereupon they were remanded.