Johnson v. State

<p>1. When the constitution prescribes the manner in which an officer shall be appointed or elected, the constitutional prescription is exclusive, and it is not competent for the legislature to provide any other mode of obtaining or holding the office.</p> <p>2. When the constitution has conferred upon the governor the prerogative of appointing, with the advice and consent of the senate, judges of the Court of Common Pleas, it is not competent for the legislature, by a subterfuge, to divert this prerogative to another source. Schalk v. Wrightson, 29 Vroom 50, approved.</p> <p>3. The same statute may be in part constitutional and in part unconstitutional, and if the parts are-wholly independent of each other, that which is constitutional may stand and that which is unconstitutional will be rejected; but if the different parts of the act are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not have passed the residue independently, and some parts are unconstitutional, all the provisions which are 'thus dependent upon each other must fail.</p> <p>4. From the title of the act of June 13th, 1895 [Pamph. L., p. 807), entitled “An act to abolish the Inferior Courts of Common Pleas, Courts of Oyer and Terminer and General Jail Delivery and Courts of General Quarter Sessions of the Peace, and to establish in their</p> <p>. place a County Court in each of the counties of this state, and to provide for and define the jurisdiction, powers and duties of such County Courts,” as well as the body of the act, it is obvious that it was the legislative purpose to abolish the old courts and substitute the new court in their place. The legislative' scheme, in its main feature— that is, the extinguishment of the old courts—having failed, the other part is not separable and must fail also.</p> <p>5. Upon the trial of a colored man, the absence of negroes from the panel of jurors is not error in the absence of proof that this exclusion was done designedly or that such persons were omitted except in the same way that white citizens not selected were omitted.</p> <p>6. The decision of the trial court approving the conduct of the sheriff in the selection of jurors is not subject to review. Patterson v. State, 19 Vroom 382, followed.</p> <p>7. Section 9 of the act concerning juries (Rev., p. 526) makes it the duty of the sheriff to deliver a list of the jurors by him summoned for service at such term, certified by him to be a true list, to the clerk of such court, who shall thereupon file the said list and forthwith lay the same before the said court, and provides that no person shall serve as a juror whose name is not contained in said list, if objection be made before such person is sworn or affirmed. Held—■</p> <p>1. That these provisions are directory merely and will not invalidate the selection and return of jurors, unless it affirmatively appears that injury was done.</p> <p>2. The sheriff was under no duty to deliver this list of jurors before the commencement of the term, the language of the section being “as soon as may be after the commencement of the term.”</p> <p>3. The sheriff’s failure to comply with this statutory requirement was a mere irregularity which could in no wise have prejudiced the defendant in maintaining his defence upon the merits ; and the statute forbids the reversal of a judgment upon an indictment for any imperfection, omission, defect in or lack of form, or for any error, except such as shall or may have prejudiced the defendant in maintaining his defence upon the merits. Gen. 8tat.,p. 1138, l 89.</p>