Bronson v. People

32 Mich. 34 | Mich. | 1875

Cooley, J:

The plaintiff in error haying been convicted of a felony relies upon two errors fpr a reversal of his conviction:

1. That two jurors were accepted and sworn on the panel whose examination disclosed the fact that they were disqualified by reason of opinions they had formed regarding the case;

2. That the court at a previous term had directed fifty jurors in addition to the regular panel to be summoned for the term at which the trial took place, when by statute it was only lawful to cause twenty-four to be summoned, and that seven of these additional jurors sat on the trial of this case.

No exception Avas taken to tlie' action of tbe court in either particular, and the plaintiff in error does not appear to haA’O made complaint in any form until after his convic.-tioü. So far as AAre knoiy the action of the court up to that time Avas satisfactory to him. He then made a motion for a neAV trial based upon these supposed errors, and it is to the action of the court in refusing this neAV trial that exception for the first time is taken.

Reliance is had upon the case of Hill v. The People, 16 Mich., 351, in AA’hicli it Avas decided that Avdiere one of the jurors Avas an alien, which fact did not come to the knoAvlodge of tlie defendant until after his conAÚction, a shoAviug of this fact by the defendant entitled him to a new trial as of right, and that error atouM lie upon the refusal to grant it. The case is not parallel to this. Here the facts AArere all Iuioaa'ii to the party, and he made no seasonable objection. If he proposed to object, lie should haye done so then, instead of quieting the \igilance of the judge by leaving him to suppose that the proceedings ATCre unobjectionable. MoreoA-er, the objections in-their nature are different. In Hill v. The People a person sat as a juror ayIio was excluded by statute. There is no complaint that the two jurors avIio Avere accepted in this case Avere thus disqualified; the complaint is that the court erred in holding that their examination disclosed no definite opinion in their minds on the facts. The. disqualification Avas absolute in the one case; in the other it depended on a fact Avliicli is not found, and AAdiicli aau are asked to find on a rcA’icAV of the evidence. So far as concerns this question there can be no claim that the jury was not a lawful one on the judge’s riding on the facts. It is not therefore a mistrial, and if the judge erred, liis attention should haye been particularly called to tlie error, by requesting him to note an exception.

The objection to the summoning of tlie fifty additional jurors was also one that should have been.taken earlier. iWe are not prepared to say that the case is not within the decision of People v. Jones, 24 Mich., 215; and whether it is or not, where the facts were all known to tlio party at the time the jury were impaneled, the circumstance that an excessive number of competent jurors had been summoned, if such were the fact, can only be regarded as an irregularity which it was entirely competent for- all parties to waive. And it is only in furtherance of good practice to hold that a defendant who chooses to take the chances of an acquittal on the merits, without complaining of any irregularity, has thereby waived it.

No error appears in the record, and the conviction must be affirmed.

The other Justices concurred.