102 P. 517 | Cal. | 1909
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *537 Defendant was indicted for the murder of Albert N. McVicar. Upon trial she was found guilty of murder in the first degree and the death penalty was imposed. From the judgment and from the order denying her motion for a new trial she prosecutes her appeal.
It is not contended that the evidence is insufficient to sustain the verdict and judgment, but complaint is made of the ruling of the court upon challenge to the panel of jurors, of certain of its rulings in admitting and refusing to admit evidence, and of other rulings refusing to give instructions proffered by the defendant. To the better understanding of these questions, the facts which the prosecution undertook to establish, require brief narration. Evidence was offered to show that the defendant married Albert N. McVicar, the deceased, in Bisbee, Arizona, in 1902. Thereafter she separated from him and lived more or less continuously with her mother near Jackson, Amador County, California. In August, 1905, she went with one Eugene Le Doux, who resided near her mother's home in Amador County, to Yolo County, where a marriage license was procured and the two were married before a justice of the peace. After this marriage to Le Doux she returned with him to her mother's house, where they lived together as man and wife. Upon March 11, 1906, she met McVicar by appointment at Stockton, California. McVicar was employed as a timberman in a mine at Jamestown, was about thirty-seven years of age, weighed about one hundred and eighty-five pounds, was vigorous and in good health. Defendant and McVicar engaged a room at the California Hotel at Stockton and remained there one night, McVicar registering, in the presence of the defendant, as "A.N. McVicar and wife." The next day the two went to a furniture store in Stockton, purchased household furniture, gave their residence as Jamestown, and ordered the furniture shipped to that place. That day or the next day they went to San Francisco, and from San Francisco the furniture company in Stockton received a telephone message from the defendant, *539 asking if the furniture had as yet been shipped to Jamestown, and stating that if it had been it was to her regret, as she desired to make other shipping arrangements. On the fifteenth day of March the defendant and McVicar left San Francisco and traveled to Jamestown, spending the night at one of the hotels, where again they were registered by McVicar as "A.N. McVicar and wife." On the following day McVicar resumed his work at the mine. The defendant informed the friends and acquaintances of McVicar that they had come to Jamestown to reside, and the two visited houses located near the mine with the apparent purpose of selecting a residence. The furniture which they purchased had arrived and was at the depot. McVicar continued in his employment until Wednesday, the twenty-first day of March. At that time he ceased work and drew from the company all the money due him, amounting to $163. The two left Jamestown together by train on the morning of March 23, 1906, which was Friday, and went to Stockton, reaching the city just before the noon hour. They gave as a reason for their change of plans that defendant had represented to McVicar that her mother in Amador County would employ and pay him better wages than he was receiving; that he was to aid in farming operations, and in driving or superintending the driving of her mother's teams. About two o'clock in the afternoon of the day of their arrival at Stockton they went again to the furniture store to make substitutions for furniture which they had purchased, stating that because of a change in their plans many of the articles which they had selected would be of no use to them. The proposed exchanges were agreed to by the furniture company, and McVicar in the presence of the defendant, said that the articles were to be shipped to Amador County, and upon the suggestion of the defendant gave the consignee's name as Eugene Le Doux, "my brother-in-law." After transacting this business the two went again together to the California hotel, again registered as "A.N. McVicar and wife" and were assigned to the room which they had previously occupied. They were seen going in and out of the building together upon the afternoon and evening of that day. McVicar appeared on the streets at half-past eight o'clock in the evening and purchased two or three flasks of whiskey at a neighboring saloon. The two were in the room at nine fifteen o'clock, and their light *540 was burning as late as half-past twelve o'clock. Early on the following morning, which was Saturday, the defendant was seen by several persons in a corridor of the hotel. At about ten o'clock in the morning she went to a store about half a block from the hotel and purchased a trunk, for which she paid, giving directions to have it sent to the California hotel and to room 97, which was the room she and McVicar had been occupying. Soon after this she went again to the furniture company and discussed the matter of the exchange of the goods which had been purchased. She spent about an hour in the store looking over different articles and purchased several. She left the store about half-past eleven. A few minutes thereafter she entered another store, where she purchased a rope, stating that she wanted to use it to bind a heavy trunk in which she intended to ship some dishes. This rope she carried away with her. From there she went to an express stand upon the street and engaged an expressman, sending him to the depot to bring a suit case, and enjoining him to make haste as, upon his return, she would have a trunk for him to take to the one o'clock train. The trunk had been delivered at room 97, but, the door being locked, it was left standing in the hall. The expressman obtained the suit case and in like manner and for the same reason left it in the hallway. At about fifteen minutes past twelve the defendant appeared again at the stand of the expressman and told him that she could not be ready to take the one o'clock train, asking him to come at two o'clock and get the trunk. She then went to a millinery store, purchased and paid eight dollars for a hat, next, to a dry-goods store, where she purchased and paid for articles of wearing apparel to the value of $15.75. In the store she stated that it was necessary for her to go to San Francisco but that she would return by the first train in the morning, as her husband was coming down from Jamestown to meet her. About two o'clock in the afternoon she sent a telegram to one Joseph Healy in San Francisco, asking him to meet her upon the train's arrival. About the same time the expressman went to the California Hotel and, assisted by another man, took the trunk which was in room 97, the trunk being packed, fastened it with the rope which was lying in the room, carried it to his wagon and delivered it at the Southern Pacific depot. The defendant had gone to the depot *541 before the expressman arrived and had displayed considerable uneasiness over the fact that her baggage had not come, and undertook to telephone to the California Hotel concerning it. It was at this time that the expressman came in sight and she abandoned her effort to telephone. The expressman delivered the trunk and the suit case in the baggage room of the depot and went away. The trunk was placed on one of the baggage trucks of the company and remained there for about an hour, until the four o'clock train reached the station. It was put into the baggage car of that train. It was then discovered that the trunk bore no check or other identification mark. Upon this discovery it was put back upon the truck, where it remained until five or six o'clock in the afternoon. It was then carried into the baggage room, where it remained until about half-past eight o'clock in the evening. In moving the trunk the suspicions of the baggageman were excited by a peculiar thumping noise which came from it when it was turned over or on end. One of the baggagemen, who had been in that employment for fourteen years and had handled dead bodies every week, smelled at the lock of the trunk and detected an odor which he believed to be that of a human body. The chief of police and the district attorney were sent for, and the trunk was opened. Inside of the trunk was found the body of Albert N. McVicar. The body was entirely dressed except for the absence of a coat and shoes. An autopsy was performed that evening and from a visual inspection every vital organ appeared in a normal and healthy condition, and there were no external wounds of consequence and no evidence of the use of any irritant or corrosive poison. Certain portions of the various organs of the body, including the bladder holding the urine, were removed for further examination. These parts were taken to San Francisco and there analyzed by a chemist, whose examination revealed the presence of morphine in quantity more than sufficient to have caused death. The defendant took the four o'clock train from Stockton to San Francisco, and remained in San Francisco at a hotel registered under the name of M.T. Williams. Joseph Healy met her in San Francisco. The next day she purchased a ticket for Stockton and took the Santa Fe train, but proceeded no further than Antioch, in Contra Costa County. Healy accompanied her as far as Point Richmond. *542 Leaving the train at Antioch, she went to the Arlington Hotel and registered as Mrs. Jones. This was on Sunday. The following day she was placed under arrest. It was further shown in evidence that while McVicar and defendant were in San Francisco the defendant had received from Dr. Dillon a vial filled with half-grain morphine tablets, and that thus the defendant was in possession of the kind of poison which caused McVicar's death. It was also shown that the defendant had represented that McVicar was in very poor health and had not long to live, while, in fact, he was in excellent health. Defendant after her arrest asserted that there was a third person in the room at the time of McVicar's death, a man by the name of Joe Miller; that Miller had gone to San Francisco with her on the train after the death and came across the bay with her to San Francisco from Point Richmond, and then decided not to accompany her further. But it was shown by the witness Healy that it was he only who had accompanied her. The watch and chain of the deceased were in the possession of the defendant at the time of her arrest. From these facts the prosecution argues that the defendant deliberately planned to trick and deceive McVicar, for whom manifestly she could have had no affection, into drawing his money, going with her to Stockton, purchasing and paying for furniture to be shipped to Eugene Le Doux, whom she represented to be her brother-in-law; that then, out of love for Le Doux, and to avoid exposure of her dual life and bigamous relationship with him, it became necessary, as a part of her plot, to kill McVicar as she did. The defense offered to prove that the defendant had been a common prostitute and had been placed in a house of prostitution by McVicar.
During the impanelment of the jury the court ordered a special venire to issue for seventy-five men. The order was directed to the sheriff of the county. (Code Civ. Proc., sec.
Section 1064 of the Penal Code declares that when the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them which would be good ground for challenge to a juror. The sheriff to whom the order was issued having clearly been shown to be disqualified, the question is presented, Does the disqualification of the sheriff extend to his deputy? or, phrasing it differently, Is a deputy qualified to act where his principal is disqualified? It is not disputed, and indeed has been decided, that the deputy who actually summons the veniremen under section 1064 may be disqualified and the panel successfully challenged for such disqualification under the section above cited. (People v. Ryan,
An examination of the authorities will disclose that they are in unison upon the proposition. In Minott v. Vineyard, 11 Iowa, 90, the question arose, and the court declared as follows: "By section 411 the sheriff is made responsible for the acts of his deputy, and when the principal is disqualified on account of interest, prejudice, partiality, consanguinity, or from being a party to the record, his deputy is also." In May v. Walters, 2 McCord, L. (S.C.) 470, the sheriff was disqualified. It was held that the writ should have been served by the coroner and not by the sheriff's deputy. In Wood v. Carpenter,
It has been said that the motive which the people ascribed for the crime and in proof of which they introduced evidence was twofold: 1. Because of defendant's love for Le Doux, with whom the people contend she had contracted a bigamous marriage and, 2. To escape the legal consequences of this bigamous relationship, when it was apparent that that relationship could no longer be concealed from McVicar. As evidence under the first ground, the people introduced certain loving and endearing letters written by defendant to Le Doux. These letters were obtained by a deputy sheriff of Amador County, acting under instructions of the sheriff of San Joaquin County, but without warrant or authority. It appears that this deputy sheriff went to the house where defendant had resided, entered upon the premises and took such letters and papers as he found, without the authority of a search warrant or any other authority, though without the objection of any person present. The only person present, who in any sense could have represented the family, was a minor brother of defendant. It is contended, and indeed it may not be disputed, that such search and seizure were absolutely unwarranted in law, though had under color of authority by an officer of the law. It was in clear violation of the constitutional guaranty, state and federal, of the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. (Const. Cal., art. I, sec. 19; Const. U.S., art. IV.) But the question here presented *547
is whether these documents thus improperly obtained under the circumstances indicated, were for that reason not entitled to be received. In Boyd v. United States,
The letters were, therefore, properly admitted in evidence.
The evidence to establish the marriage between defendant and the deceased consisted of declarations by defendant to several people, introductions to many people of the defendant by McVicar as his wife, her acceptance of this role, a telegram from defendant signed by herself as Mrs. McVicar, the repeated registration in hotels by McVicar, in the presence of defendant, of her as his wife, the cohabitation of the two, and their repute as husband and wife. The rule of Lord Mansfield, declared inMorris v. Miller, 4 Burr. 257, making necessary proof of a marriage in fact, where the charge is bigamy or criminal conversation, has been adopted and consistently adhered to in this state. (Case v. Case,
As has been stated, the theory of the prosecution was that the defendant killed the deceased because of the love she bore Le Doux and by reason of the fact that McVicar was about to discover that her relations with Le Doux were bigamous. As tending to disprove this theory of motive, the defendant offered to show and endeavored to show that her relations with McVicar were and had been illicit since 1903; that she had been placed in a house of prostitution by McVicar, and that he lived off of her earnings as a common prostitute. Appellant contends that she was entitled to have this evidence go before a jury upon the question of motive; that upon this evidence could be founded a reasonable argument against the prosecution's theory; that it would tend to overthrow any inference of her love for Le Doux; that it was not probable that a man would place his wife in a house of prostitution, while he might be willing that a mere mistress should so live; *552
that it would be evidence of her love and devotion to McVicar that she would so prostitute herself at his request, and give him the earnings of her shame; that it would tend to establish that her affections were centered rather upon McVicar than upon Le Doux. Clearly we think this evidence was admissible. Its weight, of course, was for the jury. Where marriage is asserted by one party and denied by the other, and where, as here, the motive of a crime is sought to be established before a jury, the whole conduct, life, and character of the parties as affecting this question, is open to inquiry. (Bell v. Clark,
Finally, upon the question of motive, the defendant asked certain instructions as follows: —
"The jury are further especially charged that the presumption of innocence is the only presumption allowable in a criminal case, and it is not overcome by any other presumption. There cannot be two presumptions standing together, one for the guilt and the other for the innocence of the accused. Consequently the presumption of knowledge, the presumption of the continuance of a fact, state or condition shown once to exist, the presumption of the continuance of life, or of marriage, are all overcome by the presumption of innocence.
"You are instructed that the presumption of innocence overcomes all other presumptions, of whatsoever kind or nature.
"If you believe from the evidence that the defendant and Albert N. McVicar were married in September, 1902, at Bisbee, Arizona, and further believe that the defendant married Eugene Le Doux in August, 1905, at Woodland, California, then, in that event, the court instructs you that before you can ascribe to the defendant as a motive for committing the crime charged a desire to avoid any question of a bigamous marriage, or any result therefrom, it must be fully and satisfactorily proved beyond all reasonable doubt that the marriage between Albert N. McVicar and the defendant had never been annulled, and that the defendant knew that it had not been."
These instructions were refused. In support of the refusal it is not asserted that the matter of these instructions was covered by others actually given. It is contended that the court repeatedly instructed upon the presumption of innocence and that this was sufficient. It was not. Since so much of the evidence had been directed to this question of motive, *553
the defendant was entitled to have the jury instructed with particularity as to the application of the presumption of innocence where conflicting presumptions might be said to arise. The matter is discussed in Hunter v. Hunter,
To certain physicians called as expert witnesses, the prosecution addressed the preliminary question whether they had *554
heard the testimony of certain other witnesses. Upon answering in the affirmative, they were then asked the following question: "Now, doctor, assuming each and all of the facts and circumstances testified to by these gentlemen I have named as true, what in your opinion was the cause of the death of A.N. McVicar, the deceased person mentioned in this case?" The objection of the defendant to this question was overruled. It should have been sustained. The best way to obtain the opinion of an expert witness upon a matter which is the subject of expert evidence, is through the medium of a hypothetical question. Unsatisfactory as that method unquestionably is, it is the least objectionable known to the law. To countenance the practice here adopted would but aggravate existing evils, and destroy whatever value may attach to such evidence. It assumes that every fact which the witness has heard is in his mind, while some may have been forgotten. It allows the expert to assume that unstated evidence upon which he bases his opinion has been proved to his satisfaction, while, to the minds of the jurors, it may not have been proved at all. It permits the expert to base his opinion upon some undeclared fact or set of facts to which he may give great weight, yet which in the minds of the jurors may be entitled to little or no consideration whatever. It makes it impossible for the jury ever to determine upon precisely what facts the expert has based his opinion, and thus makes it forever impossible for them to say what weight should be accorded to that opinion. And in this view it matters not whether the evidence in the case be actually conflicting or not. The vice still remains, if it be said that the evidence is unconflicting, since it is for the jurors alone to say what weight shall be given to this or that or the other evidence tending to establish a given fact. And where the evidence is unconflicting, the jurors may hold that the evidence offered is insufficient to prove some particular fact. So it is said in People v. Akin,
In thus pointing out what we conceive to be the best method for obtaining the expert opinion of a witness, we would not be understood as saying that every departure from that method involves error, necessitating the reversal of a case. Cases may arise where the facts upon which the opinion is sought are simple, salient, and few. If it be made to appear that the expert has heard the testimony by which those facts have been presented, it would not necesasrily be held ground for reversal that he was asked to express his opinion upon those facts, without a restatement of them. (Howland v. Oakland etc. Ry. Co.,
We have thus discussed all of the matters which we deem necessary in contemplation of the new trial which must be ordered, and for the foregoing reasons the judgment and order are reversed and the cause is remanded for a new trial.
Lorigan, J., and Melvin, J., concurred.
Concurrence Opinion
I concur. There can be no doubt that the trial judge erred in disallowing the challenge to the panel of talesmen returned upon the open venire, and it cannot be held that the failure of the defendant to exercise all her peremptory challenges was a waiver of her exception or a conclusive proof that the error was without prejudice, unless we were willing, which I am not, to lay down a rule of practice entirely new in this state, and supported by very meager authority elsewhere, and that in a capital case involving the life of a woman. Such a rule, moreover, is wholly unnecessary, since the existing statute affords ample means for *556
preventing the trouble which has arisen in this case. This open venire was issued, as it is in all such cases, under section
The language of this section clearly implies that the judge must, in making the order, determine whether the service of the venire shall be made by the sheriff or by (the coroner) or an elisor. He must, in other words, provide in advance for its service by a competent officer, and the only way to do this is to examine the sheriff and his deputies, and the coroner if necessary, to see that the writ is not issued to a person disqualified to act as a juror in the case. This may always be done in the presence of the defendant and his counsel in a criminal case, and I have no doubt that their waiver at that time of any objection to the sheriff or coroner, or the person named as elisor, by refusing or failing to challenge his competency when given the opportunity, would justify a denial of their challenge after the return of the venire. For it is not true, as contended by counsel, that the statute gives the parties an absolute right to challenge the panel at any time before a juror is sworn. It is true it cannot be taken after a juror is sworn — but it does not follow that it may not be waived in a case like the present by the refusal of the opportunity to object when it is offered at the time when, according to the plain intent of the statute (Code Civ. Proc., sec.
A rehearing was denied on June 24, 1909, in which the following opinions were delivered: —
Dissenting Opinion
I dissent from that portion of the foregoing opinion which is numbered "1," and also dissent from the order denying a rehearing.
Assuming that the challenge to the panel was well based, I believe that under the circumstances shown by the record, the objection should be held to have been waived. It appears that five members of the special panel were selected to complete the jury, seven jurors having been selected from the previous panel properly drawn and summoned. To my mind, appellant's objection practically amounts to no more than that these five jurors so selected from the special panel should not have been allowed to act, for the sole reason that they were not properly selected and brought into court. It affirmatively appears, however, that after the challenge to the panel was disallowed, the defendant participated in the examination of the individual jurors composing the same, passed without objection or challenge each of the five jurors ultimately taken from said panel to complete the jury, and allowed such jurors to be sworn to try the case without exercising the right of peremptory challenge as to any of them, although she then had nine unused peremptory challenges. Under these circumstances, I believe that she should be held to have waived her objections so far as these five jurors were concerned. To my mind the principle applicable is that stated in People v.Durrant,
Sloss, J., concurred in the dissenting opinion.
Addendum
The petition for rehearing is denied. In the petition two matters are pressed upon the attention of the court which merit consideration. *557
1. It is argued, with much apparent earnestness, that because defendant had not exhausted all of her peremptory challenges at the time of her acceptance of the last juror and the impanelment of the jury, she should not be listened to in the appellate court where she urges the error of the trial judge in overruling her challenge to the panel because of the bias of the sheriff. No one versed in the law can question, or we think does seriously question, the grave error that was committed in overruling defendant's challenge to the panel and in proceeding with the selection of the jury from such venire. But it is said that as the authorities are abundant and the rule well settled to the effect that this court will not review the alleged improper ruling of the trial court upon a challenge interposed to anindividual juror, if it shall be made to appear that the jury was completed without the exhaustion by the defendant of all peremptory challenges, so the same rule should be applied to a case such as this, where the challenge is to the whole panel; and if it shall be made to appear, as here it does, that a jury was taken while defendant still had unused peremptory challenges in reserve, it should be held as a matter of law that the error of the trial court is conclusively presumed to have been without injury to the defendant. Or, wording it differently, we are asked to say to defendant's counsel: "If you had arbitrarily exhausted your peremptory challenges we would then, for the admittedly erroneous ruling of the trial court in denying your challenge to the panel, have granted your client a new trial. But because you did not thus exhaust your peremptory challenges, we will not consider your objection, and your client must hang." Quite obviously the sole result which could ensue from this would be the execution of this woman under a new ruling upon a question of law. And this ruling would serve only to hang the woman, since in every subsequent case, enlightened by the extraordinary view thus expressed, defendants would exhaust their peremptory challenges and so bring the matter before this court under circumstances which, as has been said, it is conceded would cause a reversal of the case. But the reason why this court refuses so to rule does not rest alone, nor even largely, upon the fact, grave though it be, that the ruling would be the death warrant of a woman who, if her lawyers could have seen into the workings of the mind of the appellate *558 court, would easily and assuredly have prevented this result by exercising their peremptory challenges — the reason of this court's refusal is based upon the fact that there is no true, substantial analogy between the two classes of cases, and that therefore the application of the rule touching the challenge of an individual juror to the case of a challenge to a panel would be not only without reason in law, but against the reason of the law.
For where a venire has been regularly served by the proper officer, in contemplation of law a panel composed of qualified, dispassionate, fair-minded men is brought into court. If upon examination it shall prove that some one of those men is biased, the taint affects him alone. He may be disposed of by a peremptory challenge. The next juror or jurors called to the box are still presumed to be qualified men legally selected. Therefore if a defendant, while still having peremptory challenges in reserve, shall allow the jury to be completed and then on appeal complain that the court refused to excuse John Roe upon his challenge for bias, the complete answer is that the defendant had it in his power to have relieved himself of the obnoxious juror and refused to do so, and that he shall not therefore be heard to complain of an injury, the evil effects of which he was easily able to have avoided by the exercise of the power of peremptory challenge conferred upon him by law.
But how is it when a just challenge has been interposed to the array, to the whole panel, because of the interest or bias of the party summoning them? There is then before the court not the case of a single juror who may be proved to be disqualified, while his fellows stand qualified; but every man so summoned is obnoxious to the law and is in law a disqualified juror. The question is not then whether an individual juror has successfully passed an examination for actual bias upon voir dire, for if the summoning officer has been astute enough and wicked enough, he has procured evil-minded men who can and will do just this thing. But whether he does or does not, the law looks with abhorrence upon the possibility of this being done, and will not subject a defendant to the compulsion of selecting his jurors from men so summoned. In the one case the taint attaches to the individual juror only; in the other it attaches to the whole panel and procedure, and the legal vice is affixed to every juror summoned. What avail then for a *559 defendant to exhaust his peremptory challenges, knowing, as he must, that he will still be compelled to select his jurymen from men who have been called in against him without warrant of law, and who, for aught that he can tell, may prove secretly more hostile than those who are then in the box? In the case of the challenge to the individual juror, the defendant is called upon to excuse him because of the assurance that the next man is qualified. In the case at bar each and every succeeding man is equally disqualified, and had this defendant exhausted her nine peremptory challenges she would still have been called upon to complete her jury from men all summoned with like illegality who might have been more obnoxious than were those that, under the compulsion of the court's erroneous ruling, she felt obliged to accept. Here then is the broad distinction in the two classes of cases, and here also is the reason why the law will not permit the inquiry to go further than a determination as to whether or not the panel was legally chosen. For, if it was illegally chosen and the defendant compelled, with or without the exhaustion of her peremptory challenges, to select a jury from such a panel, by no conceivable circumstances can such a defendant be said to have been accorded his constitutional right to a fair trial under the laws of his land.
The industry of the state's attorney has resulted in the discovery of but one case which even seemingly bears out his contention. If it fully bore out his contention it would suffice to say that it stands alone against the great weight of contrary adjudication. But it does not so stand. In the case to which we have referred the sheriff had been set aside as disqualified, notwithstanding which order he summoned the jury. The supreme court of Colorado declared that defendant's challenge to the panel should have been sustained for this, unless there had been a waiver of the error, and proceeded briefly to point out the circumstances which, in its view, constituted a waiver. As one of the facts and circumstances, it stated that the defendant did not exhaust his peremptory challenges. But the waiver was not founded upon this circumstance, but upon other facts set forth, to the effect that defendant's counsel expressly stated that the jurors included in the panel were not prejudiced, or illegally drawn or summoned in any other respect than for the reasons specified. Says the supreme court: *560
"As defendant's counsel admits not only the personal qualifications of the jurors, but that as jurors in all respects they are unobjectionable, it would be idle to quash the panel when no possible injury could result to the defendant from selecting a jury therefrom." (Boykin v. People,
2. In the concurring opinion of the chief justice, which is hereby adopted, it is pointed out that it is the duty of the trial court to determine whether the summoning officer is qualified or not before ordering the special venire to issue to him. Objection is made that the court is helpless in this regard and has not the power to proceed in the manner indicated. It is said that only when the sheriff and coroner are parties, or when either is a party in a proceeding against the other, or when either of these officers is a party and there is a vacancy in the office of the other, can the court proceed of its own motion, but that in every other case it can proceed only upon a challenge for disqualification supported by affidavit. The restriction thus sought to be imposed upon the general powers of a court of record narrows those powers to the point of absurdity. It would mean that if the judge actually knew that the sheriff was disqualified by consanguinity or interest, he would be compelled to remain silent, issue to him a venire which he knew was to be illegally served, and await the action of somebody before he was able to correct the error. No such shackles as these embarrass a judge in the performance of this duty. It is true that the power of a judge to appoint an elisor is not unlimited and unqualified, but it is equally true that it is his duty to do so in a proper case, and that case may as well be made upon the judge's own initiative as upon that of a party litigant. It is competent and proper for him, with the parties before the court, to interrogate the summoning officer, sheriff, or coroner, to call upon the prosecution or defense so to do, to the end that he may learn at the outset *561 whether that officer is qualified, and if he be not, then to avoid the unnecessary delay and expense which would be imposed upon the state and upon litigants by placing the venire in disqualified hands.
Addendum
I agree that the trial court may forestall a challenge to a special venire of jurors, for bias of the summoning officer, by examining them in the presence of the defendant and his attorney, at the time of ordering the special venire, and allowing the defendant to participate in such examination. In that case, I doubt not the defendant would be deemed to have waived a challenge for any cause covered by such examination, unless he then filed an affidavit alleging *562 disqualification. I also agree that in many cases it would be a useless formality to require a defendant to exhaust his peremptory challenges in a vain effort to rid himself of jurors whom he really considered objectionable because of the bias of the officer who summoned them.
But I think in the present case, the circumstances show that the proceeding caused no prejudice to any substantial right of the defendant and a practical admission of this fact by the defendant. The only substantial right involved was the right to a trial by a fair, unbiased, disinterested jury of qualified citizens, selected according to the forms of law, by persons without bias toward her. This the record shows she actually had. The fact that the possession of an opinion by the sheriff, who did not summon the jury, works a technical disqualification of the deputies who did perform that service, is not, as I believe, such an important departure from the forms of law as to require a reversal of the case, in the total absence of any claim that it did in fact in anywise affect the character of the jurors selected. For these reasons, and because I considered the other errors alleged to be equally unsubstantial, I did not concur in the original judgment of reversal herein.