Opinion
(June Term, 1851.)
A person who is exempted by law from serving on juries is not bound to serve on a special venire.
APPEAL from Caldwell, J., at CRAVEN Spring Term, 1851.
The defendant was summoned as juror under a special writ of (100) venire facias issued by the judge of the court according to the provisions of the act of the Assembly, Rev. Stat., ch. 35, sec. 17. The writ was issued on Wednesday of the court, in an indictment for grand larceny, and the defendant by virtue of the writ was summoned to appear as a juror on Thursday of the same term of the court. On his appearance he proved that he was at the time of the summons, and still continued, an acting member of an incorporated fire company in the town of New Bern by the name of the Atlantic Fire Company No. 1. The defendant produced in evidence the private act of Assembly incorporating the said company 1846-7, ch. 163, and also an act of Assembly 1848-9 in relation to the said company, which was in the following words: "The members of the aforesaid fire company, while they continue to act as such, shall be exempt from serving as jurors either in the county or Superior Courts." It further appeared that the said fire company had complied with all the requirements of the act of incorporation.
The defendant claimed that he was exempt from serving as a juror. The court was of opinion that he was not exempt. Thereupon the defendant refused to serve, and was adjudged by the court to pay a fine of $5. From this judgment the defendant appealed.
Attorney-General for the State.
Strange and Dobbin for defendant.
The case presents the single question whether the defendant was bound to attend the Superior Court of Craven to serve as a juror upon a special venire. The defendant alleges that he was not so bound, for the reason that he was a member of the Atlantic Fire Company in the town of New Bern, and was then acting as such. The company was incorporated in 1846 and in 1849 by a public act, the members of that company, while they continue to act as such, (101) are exempted "from serving as jurors either in the county or Superior Courts." The defendant was regularly summoned and refused to serve.
The words of the act are sufficiently broad to embrace the defendant's case. It is alleged, however, that it does not come within its meaning. We are referred to S. v. Hogg, 6 N.C. 319, and to S. v. Williams, 18 N.C. 303, recognizing it. The defendant in the first case was a commissioner of navigation, and by the act of 1807 was exempted from serving on juries. He was summoned to attend the Superior Court of New Hanover as a tales juror; and refusing, under his exemption, was fined and brought his case to the Supreme Court, when the judgment of the court below was affirmed upon the ground that the act of 1807 did not extend to tales jurors, but that the exemptions stated in it meant from serving on the original panel. The reasons assigned are that these exemptions are not intended as privileges or compensation to the party unless so expressed in the act. "So far, therefore," concludes the Court, "as serving on a jury does not interfere with their public avocations, they are still liable to be called on for that service." And it is because a talesman must be taken from the bystanders at the court that they may be summoned, as his being a bystander proves that he was not then on official or professional duties which required his attention. Do these reasons apply to an individual summoned to serve on a special venire? It is though not. It is true a special venire is not the original panel, and the jurors are summoned only to try prisoners capitally indicted; yet they are to be taken from the body of the competent citizens of the county liable to be summoned while they are engaged in the pursuit of their ordinary business while at home at a distance from the courthouse, bound to attend under the same penalties that compel the presence of the original panel, and bound as the latter are "to attend from day (102) to day until discharged by the court." There is little if any similarity between the talesman and the special venire juror. The former is bound to attend only on the day on which he is summoned, and upon its close, if not impaneled, he stands discharged and may, without any leave of the court, depart to his home. There is no reason, then, furnished by S. v. Hogg why the exemption contained in the act of 1849 should not cover the defendant's case. The duties which he as a member of the Atlantic Fire Company has to perform are highly important to the community, and to their due performance a regular train of drilling and exercise is necessary; and at any moment, as well in the day as in the night, the services of the company may be needed. As the language of the act of 1849 embraces the defendant's case, and no good reason, so far as we can perceive, exists why he should be deprived of the privilege therein expressed, we are of opinion that there is error in the judgment appealed from, and that he was entitled to his discharge.
PER CURIAM. Reversed.
Cited: S. v. Willard, 79 N.C. 662; S. v. Cantwell, 142 N.C. 614.
(103)