Commonwealth v. Moore. COMMONWEALTH V. MOOre. (143 Mass. 138.) Juror-competency — member of association to prosecute. A member of a voluntary association, formed for the prosecution of violations of certain laws, is incompetent as a juror on the trial of a complaint for such a violation, instituted by an agent of the association, who is furnished by it with money for the expenses, and is paid for his services.* ONVICTION of nuisance. The opinion states the case. CONVICTION E. L. Barney, for defendant. E. J. Sherman, attorney-general, for Commonwealth. GARDNER, J. Jurors in this Commonwealth are required to be "persons of good moral character, of sound judgment, and free from all legal exceptions." Pub. Stats., ch. 170, § 6. By section 35. upon motion of either party in a suit, the court is required to examine the person called as a juror therein, "to know whether he is related to either party, or has any interest in the cause, or has expressed or formed an opinion, or is sensible of any bias or prejudico therein." After the examination of the juror, as above provided, the party objecting may introduce any other competent evidence in support of the objection, subject to the discretion of the court. Commonwealth v. Thrasher, 11 Gray, 55; Commonwealth v. Gee, 6 Cush. 174. If it appears to the court that the juror does not stand indifferent in the cause, he shall stand aside, and another be called in his stead. All this must be done before the jury are impanelled. Woodward v. Dean, 113 Mass. 297. The word "suit" has in practice been considered as meaning criminal prosecutions, as well as civil proceedings. Commonwealth v. Abbott, 13 Metc. 120; Commonwealth v. Gee, and Commonwealth v. Thrasher, ubi supra; Commonwealth v. O'Neil, 6 Gray, 343; Commonwealth v. Eagan, 4 Gray, 18, 20. But few cases have arisen under this statute, to which the attention of the court has been called. In Commonwealth v. O'Neil, ubi supra, which is strongly relied upon by the government in support * Compare Boyle v. People (4 Colo. 176), 34 Am. Rep. 76. Commonwealth v. Moore. of the ruling of the Superior Court, three of the jurors were members of "Carson Leagues." The object of the members of such leagues was the prosecution of violations of the laws against the manufacture and sale of intoxicating liquor. They subscribed each a certain sum to the funds of the association for the purpose of defraying the expenses of such prosecutions; and each member was liable to be assessed his proportion of all expenses incurred in such prosecutions, and was liable to pay the same to the extent of his subscription. The court held, that as the exceptions were framed, they could not find enough to show that the judge who presided at the trial was legally bound to set the jurors aside, and that it did not appear "that either of them had any, even the smallest, pecuniary interest in the event of the prosecution." The question whether they stood otherwise indifferent in the result of the trial does not appear to have been raised. In Commonwealth v. Eagan, ubi supra, one of the jurors, upon inquiry, stated that he was a member of the Carson League, the object of which society was to prosecute individuals for violation of the liquor law; that assessments were made upon the members for the purpose of carrying out the object of the society; that his membership consisted in subscribing for stock; and that he had paid one assessment, and expected to pay more. The juror further said, that the amount of his assessment would not be changed or affected by the result of this indictment; and that there was nothing in the existence of his membership to prevent his giving a fair and impar tial verdict, according to the evidence. The juror was permitted to remain upon the panel. This court held, on the defendant's exceptions, that the court had no knowledge of the assumed obligations of the members of the Carson League, other than what the juror stated to be his understanding of them; and that it was not prepared to decide that in this instance the ruling of the Court of Common Pleas was wrong. Mr. Justice METCALF, in giving the opinion of the court, said: "We deem it to be our duty however to say that in our judgement the members of any association of men, combining for the purpose of enforcing or withstanding the execution of a particular law, and binding themselves to contribute money for such purpose, cannot be held to be indifferent, and therefore ought not to be permitted to sit as jurors, in the trial of a cause in which the question is, whether the defendant shall be found guilty of violating that law." VOL. LVIII— 17 Commonwealth v. Moore. One of these cases makes the fact of pecuniary interest in the juror a prominent feature in determining whether he is indifferent, or unfit to sit upon the trial. But this is not the only disqualification to the fitness of a person to sit as a juror. He may be entirely unaffected by the result of the trial, so far as any pecuniary interest is concerned, and yet he may have such ill-will against one of the parties, be so biased or prejudiced against him, that he could not be indifferent. A juror may also stand in such a relation to witnesses to be produced at the trial, that he cannot fairly consider their testimony. In a criminal case, he may be the instigator of the prosecution, and be absolutely unfit to act as a juror in determining the guilt or innocence of the person accused. The facts in the case at bar, as stated in the bill of exceptions. differ materially from those reported in the cases we have referred to. The juror was a member of the Law and Order League of New Bedford, where the offense charged in the complaint is alleged to have been committed. The league was a voluntary association formed for the enforcement in New Bedford of the laws against the illegal sale of intoxicating liquors, and for the prosecution of liquor sellers. The complainant, Jules Giquel, and one Partridge, both of whom were witnesses at the trial, were agents of the league, and furnished by it with money to pay expenses in carrying on their work, and were also paid for their services. The complainant, with Partridge and three sailors, went to the defendant's bar-room. There was evidence that Giquel paid for some of the liquor ordered, and furnished to them. That the complainant Giquel and Partridge were employed by the league to induce the defendant and others, to sell liquor for the purpose of prosecuting them for violation of the laws, is apparent from the evidence and the instruction given to the jury. The presiding judge instructed the jury, "that persons employed to induce the defendant and others to sell liquor for the purpose of prosecuting them for violation of their licenses should be regarded with great caution and distrust as witnesses. The considerations went to their credit as witnesses, but it was still for the jury to say how much credit should be given them." The juror was a member of a local association, which employed the complainant to induce the defendant to violate the law, in the city of New Bedford, in order that he might prosecute the defendant for such violation, and he was the agent of the juror for this special purpose. He, with his associates, had selected Giquel as a proper person to induce the defendant to Commonwealth v. Teevens. violate the law, prosecute him for such violation, and go before a jury as a witness worthy of belief. It is difficult to see that such a juror was so indifferent, so disinterested and unbiased, that he could regard his agent, whom he had employed through his association, "with great caution and distrust" as a witness. These considerations as to his credit he had already passed upon and determined when Giquel had been selected as agent of the association of which he was a member. But it is not necessary to go to the extent that the agent of the association was appointed for the purpose of inducing the defendant and others to violate the law. It is sufficient that it appeared that the complainant Giquel was employed, by the association of which the juror was a member, to enforce the laws in New Bedford against the illegal sale of intoxicating liquor, and to prosecute liquor sellers in that city. He thus became the agent of the juror, as well as of the other members of the association. Whether or not he was to appear as a witness at the trial is immaterial in the view we take of the case. The complaint which the juror was to try was originated by his agent, appointed for the purpose of making such complaints. He could not be indifferent as to the result of that prosecution. He could not sit unbiased in determining the guilt or innocence of the defendant upon a complaint instituted by the juror's authorized agent. We are therefore of opinion that the juror was not competent to sit, and that the Superior Court erred in allowing him to remain upon the panel. Exceptions sustained. * * On a complaint, charging A. with the crime of adultery, A. entered into a recognizance with sureties, conditioned that he should appear before the Superior Court at the next term, "to answer to said complaint, and abide the order and sentence of the court thereon, * and not depart without leave.” The grand jury, at that term, found an indictment against him for lewd and lascivious cohabitation; he pleaded guilty, but did not appear when called for sentence. Held, that there had been a breach of the recognizance. A Commonwealth v. Teevens. CTION on a recognizance. The head-note states the point. The plaintiff had judgment below. J. A. McGeough, for defendant. E. J. Sherman, attorney-general, for Commonwealth. DEVENS, J. The recognizance bound the principal to appear before the Superior Court to answer to a complaint for the crime of adultery. He was not in fact indicted in the Superior Court for that crime, but for lewd and lascivious cohabitation. Had an indictment been substituted for the complaint for the same offense as that therein described, the defendant contends, that as the principal could not have been tried in the Superior Court upon the complaint (the offense being one of an indictable character), the lower court had no authority to recognize the defendant to answer thereto, but should have required him to answer any indictment for the offense; and that the recognizance is therefore invalid. This contention cannot be maintained. The cases of Commonwealth v. Slocum, 14 Gray, 395, and Commonwealth v. Butland, 119 Mass. 317, are quite decisive that a recognizance in this form is valid and sufficient, and binds the defendant to appear and answer any indictment for the same offense charged in the complaint. Nor should we be prepared to say, that if the recognizance were limited to appearing and answering to a specified offense, it would not equally bind the defendant to appear and answer to any offense which might substantially be included in the offense described in the complaint, even if of a lower grade; as in the case at bar, if the defendant were charged in the indictment with lewd and lascivious cohabitation with the same person with whom he was alleged in the complaint to have committed adultery. We do not find it necessary to consider this inquiry, as the breach of the recognizance claimed by the Commonwealth is that the defendant departed without leave of court; and this is in itself a distinct breach of the recognizance. He and his sureties were called and defaulted upon his recognizance. The Superior Court ruled that the recognizance bound the principal defendant, not merely to appear and answer the specific complaint, but to abide the final order of the court, and not to depart without leave. The condition of the recognizance |