26 N.W.2d 383 | Neb. | 1947
Lead Opinion
By information filed in the district court for Adams County, Robert L. Bufford was charged with the crime of manslaughter and, also, with unlawfully assaulting Alfred T. Anderson with intent to inflict great bodily injury. These charges arose out of the death of Alfred T. Anderson on or about December 29, 1945.
A jury found the defendant guilty of unlawfully assaulting Alfred T. Anderson with intent to inflict great bodily injury.
His motion for new trial having been overruled and a sentence imposed that he serve a term of not less than
For convenience the plaintiff in error will be referred to as the defendant.
Defendant assigns the following as error: First, the trial court’s overruling of his challenge for cause of Pearl Sarver, a prospective juror, whose voir dire examination shows she served as a juror in the case of Skelton v. State, ante p. 30, 26 N. W. 2d 378; second its ruling in permitting inmates of the Hastings State Hospital to become witnesses and testify; and third, its denial of his application for a parole as provided by statute.
We have determined the questions raised by defendant’s second and third assignments of error in the case of Skelton v. State, supra, contrary to his contention. No useful purpose would be served by repeating our holdings in this opinion.
In considering the first assignment of error it should be stated that the prosecutions of both Skelton and Bufford arise out of the same incident. This occurred in ward 30 of the Hastings State Hospital in the early morning of December 29, 1945, and resulted in the death of Alfred T. Anderson an inmate thereof. The witnesses and their testimony will naturally be almost the same.
The voir dire examination of Pearl Sarver, when called to serve as a juror, shows that she sat as a juror in the case of Skelton v. State, supra, wherein Luther Skelton was found guilty of unlawfully assaulting Alfred T. Anderson with intent to inflict great bodily injury. This is the same offense for which the defendant here has been convicted.
It is apparent that the same jury panel was used in both cases. While some of those who sat in the case of Skelton v. State, supra, were disqualified because they testified they had formed an opinion of the guilt or innocence of the defendant by reason thereof, how
It is provided by section 11, art. I, of the Constitution that anyone charged with a crime is entitled to “a speedy public trial by an impartial jury.”
In Seaton v. State, 106 Neb. 833, 184 N. W. 890, we held: “Where two or more persons are jointly indicted or informed against for the commission of a single offense and sever in their trials, jurors who sat in the trial of one are thereby disqualified to sit in the trial of another.” We think the same rule is applicable where two or more persons are separately indicted or informed against for the commission of an offense arising out of the same incident so that the same witnesses and testimony will necessarily be used against each.
As stated in Seaton v. State, supra:
“ ‘ * * * where a juror has participated in a verdict of guilty against another person charged with the same*41 offense, growing out of the same transaction, and necessarily to some extent depending upon the same evidence, he has, in some degree at least, prejudged the defendant. See Jacobs v. State, 1 Ga. App. 519, wherein this court said: “It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias (leaning) or prejudice (prejudgment) can attach to any member thereof.” Unless the jury be absolutely impartial, the jury system becomes an “awkward instrument of justice,” and the constitutional guaranty that “every person charged with an offense against the laws of this state * * * shall have a public and speedy trial by an impartial jury” * * * is worthless.’ (See McKay v. State, 6 Ga. App. 527.)
“This rule is recognized in 17 Standard Ency. of Procedure, 347: ‘A juror,’ it is said, ‘is incompetent where he has sat on a jury that tried another jointly indicted defendant, even though he says he has formed no opinion and can try defendant impartially.’ ” See, also, Obenchain v. State, 35 Tex. Cr. 490, 34 S. W. 278; People v. Mol, 137 Mich. 692, 100 N. W. 913, 68 L. R. A. 871, 4 Ann. Cas. 960.
Therefore, all of the jurors who'-had served in th.e Skelton ease were disqualified to serve in this case. If-they had been challenged for cause such challenge should have been sustained. However, the record shows such challenge was made solely as to the prospective juror Pearl Sarver. As stated in 35 C. J., Juries, § 404%, p. 364: “As a general rule an objection to a juror which is a good cause of challenge must be made in time or will be considered as waived. It is well settled that a failure to challenge or object operates as a conclusive waiver if the ground of objection is known to the party at the time the jury is impaneled, or is discovered during the progress of the trial, * * * .” “The right to‘challenge a juror for disqualification is a right which may be waived even in a capital case.” 31 Am. Jur., Jury, § 117, p. 645.
Does the fact thát the trial court erroneously ruled on
“A peremptory challenge is one which may be exercised by the accused upon his own volition, and for which he need not give any reason and which is not subject to the control of the court.” Thurman v. State, 27 Neb. 628, 43 N. W. 404. In Fetty v. State, 119 Neb. 619, 230 N. W. 440, in quoting from Mathes v. State, 107 Neb. 212, 185 N. W. 425, thé court went on to say that: “ ‘ * * * peremptory challenges are not to be exercised until the jurors have been passed for cause and twelve men are in the jury-box.’ ”
It is the defendant’s thought that since he exhausted all of his peremptory challenges and therefore had not waived his constitutional and statutory rights that any erroneous overruling of a challenge for cause of a prospective juror is ipso facto prejudicial error.
We held in Thurman v. State, supra: “ * * * that the juror was incompetent and that the decision of the district court in overruling a challenge to him for cause was prejudicial error. * * * also, that the fact that the juror was peremptorily challenged by plaintiff in error, did not cure the error and that he was entitled to a new trial.” Therein the court quoted from Curry v. State, 4 Neb. 545, as follows: “But he was retained against the challenge of the accused, who was compelled to resort to one of his peremptory challenges for his removal. In this there was error to the prejudice of the prisoner.”
The true object of challenges, either peremptory or for cause, is to enable the parties to avoid disqualified persons and secure an impartial jury. When that end is accomplished there can be no just ground for complaint against the rulings of the court as to the compe
In People v. Rambaud, 78 Cal. App. 685, 248 P. 954, the court in discussing the question said: “While some of the earlier cases announce the rule that a disallowed challenge for cause will be considered upon appeal, under the circumstances here presented (which is the. same as the situation at bar), all the later decisions and the ones which announce the correct rule, hold against the appellant’s contention. In 8 Cal. Jur., page 610, we find the following: ‘The rule, as laid down in the later cases, is that an erroneous disallowance of a challenge for cause is not prejudicial, even though the defendant finally exhausted his peremptory challenges, if it does not appear that he had occasion to or desired to use an additional peremptory challenge, or that the jurors finally accepted were not entirely satisfactory to him. In the earlier cases there is authority to the contrary. To warrant a reversal it must appear that an objectionable juror was forced upon the defendant and that he in some appropriate manner expressed his dissatisfaction with the jury as completed.’ ” The court went on to say: “ * * * the important thing to be considered is whether the objectionable juror was forced upon the defendant and whether he had that to which he was entitled, a fair and impartial jury and not a jury corm posed of any particular individuals.”
As stated in 1 Hyatt on Trials, § 565a, p. 601: “In practically all jurisdictions, if the record on appeal does not affirmatively show prejudice the appellate court will not presume it.” See, also, 1 Thompson on Trials, 2d ed., § 120, p. 148.
As stated in State v. Costales, 37 N. M. 115, 19 P. 2d 189: “ ‘ * * * the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment unless it is further shown upon appeal that an objectionable juror was-
As Stated in Bohanan v. State, 15 Neb. 209, 18 N. W. 129: “The challenge of this juror for cause ought to have been sustained, but as he did not sit in the case, having been excused or challenged peremptorily, and it not being shown that to exclude him the prisoner was compelled to exhaust his right of challenge, the overruling of it caused no injury.”
As stated in 31 Am. Jur., Jury, § 116, p. 644: “According to the great weight of authority, the erroneous allowance of a challenge for cause is no ground of complaint where a competent and unbiased jury is finally selected.”
We have come to the conclusion that our former holdings in Thurman v. State, supra, and Curry v. State, supra, are too -narrow and technical in their application. In order to accomplish the purpose for which intended the rule therein announced may often cause unnecessary reversals when the defendant has actually been tried by a fair and impartial jury and one to which he had made no objection. We think the rule herein discussed, which appears to be the majority rule, is much more effective to accomplish the purpose for which it is intended. This rule is stated in Johnson v. State, 108 Tex. Cr. 499, 1 S. W. 2d 896, as follows: “ * * * where the court erroneously fails to sustain the proper challenge of a juror for cause a reversal will not result unless it' is made to appear that the error brought injury to the accused.” See, also, State v. Tippett, 317 Mo. 319, 296 S. W. 132; Conley v. Commonwealth, 225 Ky. 275, 8 S. W. 2d 415; Carthaus v. State, 78 Wis. 560, 47 N. W. 629; State v. Raymond, 11 Nev. 98; Spies v. People, 122 Ill. 1, 12 N. E. 865; Johns v. State, 55 Md. 350. Insofar as the holdings in Thurman v. State, supra, and Curry v. State, supra, are in conflict herewith the same are modified.
The record discloses that the defendant had a fair and impartial trial; that the evidence fully sustains his conviction; and that the sentence is not excessive. For the reasons herein stated the verdict of the jury and the sentence of the court should be and are affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I feel that I must dissent from the majority opinion. It appears to me that the majority opinion on its face discloses a failure to recognize rights which have been recognized as fundamental under common law, under constitutional processes, under the statutory law of this land, and under unbroken legal interpretation in all common-law jurisdictions ever since the abandonment of the practice of trial of those charged with crime by a jury composed of men from the vicinity who had a familiarity with the facts of the case.
I do not need to point to authority for the statement that every one charged with a crime is constitutionally entitled to a trial by jury. I do not need to point to authority to say that the trial must be fair. And no more do I need to point to authority to say that in legal and constitutional contemplation it cannot be said that there was a fair trial unless the trial was had to a jury composed of jurors qualified to serve.
These propositions are not mere concepts but are bulwarks of our judicial system and of democratic processes and may never properly be lightly regarded or cast aside. It appears to me that they have been cast aside by the majority opinion in this case.
The majority opinion points out unequivocally that these six were disqualified to serve as jurors in this case.
It appears to be the opinion of the majority that since it is not made to appear that Pearl Sarver did serve the overruling of the challenge to her is not available here, and that since there was no challenge to Eigenberg his disqualification must be considered as having been waived.
To my mind this is both technical and fallacious. It is technical in that it is an exaction of a known futility. After the defendant had challenged one prospective juror and had a negative response at the hands of the court what basis except a technical one could there be for further challenge to other prospective jurors on the same ground? We no longer adhere to the rule requiring repeated objection to evidence of the same kind. Should we be more technical when lives and liberties are involved than in the determination of personal or property rights? I don’t think so.
To support my contention I set forth here something which was quoted with approval in the majority opinion from Seaton v. State, 106 Neb. 833, 184 N. W. 890:
“ ‘ * * * where a juror has participated in a verdict of guilty against another person charged with the same offense, growing out of the same transaction, and necessarily to some extent depending upon the same evidence, he has, in some degree at least, prejudged the defendant. See Jacobs v. State, 1 Ga. App. 519, wherein this court said: “It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias (leaning) or prejudice (prejudgment) can attach to any member thereof.” Unless the jury be absolutely impartial, the jury system’becomes an “awkward instrument of justice,” and the constitutional guaranty that “every person charged with an offense against the laws of this state * * * shall have a public and speedy trial by an impartial jury” * * * is worthless.’ ” See McKay v. State, 6 Ga. App. 527.
I fail to see how this court can say that unless the jury be absolutely impartial, the jury system becomes an awkward instrument of justice, and the constitutional guaranty that every person charged with an offense against the laws of this state shall have a public and speedy trial by an impartial jury is worthless, and at the same time say that the defendant’s rights were properly safeguarded in this case.
And again, upon whom does the duty devolve to protect the rights of defendants in criminal cases? For the
Dissenting Opinion
dissenting.
I join in the dissent of Yeager, J., for the reasons stated by him. I dissent further for a reason relating to the juror Pearl Sarver.
The majority hold: “Where two or more persons are severally indicted or informed against for the commission of an offense arising out of the same incident so that the same witnesses and testimony will necessarily be .used against each and separate trials are had then jurors who sat in the trial of one are thereby disqualified to sit in the trial of another.” The majority cite with approval the rule that “It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias (leaning) or prejudice •(prejudgment) can attach to any member thereof.” I agree with these propositions of law.
The majority hold that all the jurors who served in the Skelton case were disqualified to serve in this case. I
The majority then hold that because the record does not affirmatively show that Pearl Sarver either served as a juror or that she was removed by peremptory challenge, the defendant was tried to a fair and impartial jury. I disagree.
The record does not show that the trial court performed its duty to see that the defendant was tried by a jury such that not even a suspicion of leaning or prejudgment attached to it. The record affirmatively shows that at the only point where the trial court was called upon to perform that duty, it refused to perform it.
The last the record shows of Pearl Sarver, she was sitting in the jury box, passed for cause against defendant’s challenge. I submit the presumption is that she remained there, and that we should not presume the removal of prejudicial error, nor should we put' upon the defendant the burden of showing that the prejudicial error was not removed.
. We have held: “A fact, relation or state of things once shown to exist may be presumed to continue as long as such fact, relation or state would naturally continue; * * * .” Reitz v. Petersen, 131 Neb. 706, 269 N. W. 811; 20 Am. Jur., Evidence, § 207, p. .205; 31 C. J. S., Evidence, § 124, p. 736. If we are to indulge in presumptions, we should presume that the disqualified juror remained on the jury. The record shows nothing to the contrary.
“The defendant in any criminal case is entitled as a matter of right to require in the first instance a compliance with the provisions of law safeguarding his right to a fair and impartial trial; and, if the provisions of law intended for his security are willfully disregarded, he may' require the state to show that he has not been prejudiced by reason of such noncompliance.” Roddie v. State, 19 Okl. Cr. 63, 198 P. 342.