Chapter XIX
Courts other than Justices' Courts; Grand and Petit Juries, &c.
§1. The court next higher than a justice's court, is a court held in each county, generally called a _county court_, or _court of common pleas_. This court is usually held by a county judge elected by the electors of the county in most of the states; in some, appointed by the legislature; and in others, by the governor, with the advice and consent of the senate. In a few of the states this court consists of more than one judge. In some states, county courts are held by judges of the circuit courts.
§2. In this court are tried civil causes in which are claimed sums of greater amount than a justice of the peace has jurisdiction of, and criminal causes in which are charged the lower crimes committed in the county. Also causes removed by appeal from a justice's court are tried in this court; in which cases it is said to have _appellate_ jurisdiction. Courts are also said to have _original_ jurisdiction; which means that suits may _originate_ or commence in such courts.
§3. There is in every state at least one court, and in most of the states there are two or more courts of higher grade than a county court. They are called in the different states by different names; as _circuit court_, _superior court_, _supreme court_, and _court of appeals_. A _circuit_ court probably obtains its name thus: A state is divided into judicial districts, in each of which one or more judges are elected, who go around holding a court once a year or oftener in each of the counties composing a judicial district. This court usually has both original and appellate jurisdiction; it being a part of its business to try appeals from the county courts. It also tries such of the higher crimes as a county court has not the power to try. Courts in which crimes are tried are sometimes called courts of _oyer and terminer_.
§4. Every county court, and every circuit having like jurisdiction, has a jury to try issues of fact, and a grand jury. An _issue of fact_ is when the _fact_ as to the indebtedness or the guilt of the party charged is to be determined from the testimony. An _issue of law_ is one in which it is to be determined what is the _law_ in the case, which is done by the judge instead of the jury. The jury by which issues of fact are tried, as distinguished from a grand jury, is called a _petty_ or _petit jury_. It consists of twelve men, all of whom must agree in a verdict.
§5. The manner of selecting grand and petit jurors is prescribed by law. A number of judicious men in each town are selected by some person or persons lawfully authorized; and the names of the men so selected are written on separate pieces of paper, and put into a box in each town, and kept by the town clerk; or as is the practice in some states, the names of the men designated as jurors in the several towns are sent to the county clerk, and by him kept in a box. Previous to the sitting of the court, the requisite number is drawn out the box; and the men whose names are drawn, are summoned to attend as jurors.
§6. It is the business of a _grand jury_ to inquire concerning crimes and misdemeanors committed in the county; and if there appear just grounds of accusation against any person, they make to the court a presentment or formal charge against him, upon which he is to be put upon trial. The number of grand jurors is not always the same. In some states there may not be more than twenty-three nor less than twelve. It is not required that they shall all agree in order to put a person upon trial.
§7. On the opening of the court, the grand jurors are sworn to make a true presentment of all things given them in charge. The judge then gives them a charge, and appoints one of them foreman; and the jurors retire to a private apartment to attend to their duties. They hear all complaints brought before them against persons for crimes and breaches of the peace, and examine witnesses who appear to testify; and when it is requested, they have the assistance and advice of the state's attorney; or as he is called in some states, the _district attorney_, or _prosecuting attorney_. If they think any person complained of ought to be tried, they draw up a writing, in which they charge him with the offense of which they think him guilty. This is called an _indictment_. It is signed by the foreman, indorsed "a true bill," and carried by the jury into court. If the person accused has not before been arrested, he may now be arrested, and put upon trial. (See Chap. XVIII, §12-14.)
§8. As grand juries do not try crimes, but merely make inquiry into them, some may not readily perceive the necessity of such juries. Innocent persons might be subjected to great inconvenience and expense in defending themselves in court against the slanderous reports or false accusations of evil minded persons. It is to prevent this that grand juries are instituted, who make careful examinations into the cases brought before them, and do not often charge persons with crime unless there is a strong probability of their being found guilty on trial.
§9. So important was the institution of grand juries considered, that the constitution of the United States, to which the constitutions and laws of the states must conform, was made to provide, that "no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury," except in certain cases. (Con. U.S., Amend. Art. V. For the definition of "infamous crime," see Chap. VI., §7.)
§10. It is the opinion of many that this requirement of a previous indictment by a grand jury has reference only to the courts of the United States; and that the states may dispense with it. Hence, efforts are now making in some states to abolish grand juries. It is supposed that an examination at all times before a justice or a judge, when the prisoner can be present with his witnesses, is more likely to protect him against being unnecessarily subjected to the trouble and expense of a trial, than before a grand jury, where complaints are often made by malicious persons, and sustained by the testimony of partial or corrupt witnesses.
§11. The _supreme court_ is generally the next higher, and in most of the states, the highest state court. This court differs somewhat in the different states, both in the manner of its formation and in its jurisdiction. It is believed, however, to have, in the states generally, both original and appellate jurisdiction, civil and criminal. In the state of New York and a few other states, there is one higher court, called _court of appeals_, which has appellate power only. Its business is to review cases from the supreme court.
§12. Suits in the county, circuit, and supreme courts, are commenced by a _writ_, (in some states a summons or a declaration,) which is served by the sheriff of the county in which the suit is to be tried. He also serves warrants and executions issued by these courts. A sheriff is to these courts what a constable is to a justice's court. His powers and duties have been elsewhere described. (Chap. XIV., §8.)