45 Kan. 492 | Kan. | 1891
Opinion by
At the March term, 1890, of the district court of Harper county, the appellant, James M. Beatty, was convicted of murder in the first degree, for the unlawful killing of one James W. Hutchinson. The material facts developed at the trial are, that on the morning of July 24,1889, the dead body of James W. Hutchinson was found on the floor of his house, situate in the city of Anthony. He had been killed by being struck in the back by several bullets, or pieces of bullets, that had entered his vital organs, tearing and lacerating them, producing probably instantaneous death. The shot had been fired through the south window of the room in which he had been sitting upon a chair, convenient to a table on which there was a lighted lamp. The lower half of the sash of the window had been removed, and a light screen or netting had been fastened over the opening. This netting was torn and powder burned, and the right side of the window frame was burned and blackened by powder, parts of the gun-wadding adhered to the body, and other parts were scattered around the room in which the body was found. It seems that a muzzle-loading gun had been used, and that the muzzle had been held close to the screen or netting, at the time the fatal shot was fired. The deceased had been seen and conversed with by his neighbors on the preceding evening; a light had been observed after dark in this room; an explosion as of a heavily-loaded gun had been heard by his neighbors between nine and
The appellant, James M. Beatty, had a wife and four children. He was a section-boss on one of the railroads, and also owned a quarter-section of land in Harper county. His wife had gone to the state of Iowa in the preceding February with some of her children, and the remainder followed her in June. There is some evidence tending to show that Beatty did not intend to live with her again. After the departure of his wife, the wife of the deceased did washing, baking and mending for Beatty, and for some time in June he took his meals at the house of the deceased, still sleeping at his own. It appears from the evidence of the wife of the deceased, that the appellant talked to her several times about going to the state of Iowa with him; that he told her that he had parted with his wife forever; that her husband did not treat her right; that she had to work too hard; that if she was his woman she would not have to work so much; that he could do better by her than her husband had done; that he had furnished her money to buy tickets for her trip to Iowa; and gave her funds with which to buy a trunk and a hat; and had instructed her to tell her husband that this money was sent to her by a brother in Iowa; but the woman strongly denies that any other improper language ever passed between them, or that any improper relations existed. The killing occurred shortly after 9 o’clock p. m. ; the appellant is shown to have purchased a pistol on the 22d of July, and some musket caps; later, on the same day, he purchased powder. He was in a deep railroad cut on that day firing the pistol. On this day, the appellant boxed some of his
I. The first contention of the appellant that we shall notice arises on this state of facts: The appellant was arrested on the 24th day of July, 1889; his preliminary examination, lasting several days, was concluded on the 9th day of August, and on the 18th day of September the county attorney filed an information against him, charging the appellant with the killing of John W. Hutchinson. On the 2d day of October the appellant waived an arraignment and entered a plea of tCnot guilty” to said information. On the 8th day of Jauuary, 1890, the county attorney, by leave of the court, amended the information by substituting the word James for that of John, a mistake having been made in the information as to the first name of the deceased, it being James instead of John, as stated in the information. The application to be allowed to make this amendment was done in the presence of counsel for the the accused, but he was not personally present in court when leave was given and the amendment made. The journal of the court recites that at the time the amendment was allowed the trial court ordered that a copy of the amended informa
We do not believe, under such circumstances, that the al-
'On the other question, it appears that the defendant appeared, waived an arraignment, and entered a plea of not guilty to the original information. There is no complaint anywhere in the record that a certified copy of the original information had not been served upon the appellant for a period of forty-eight- hours before he waived arraignment and plead. The question then presented is this: "Was the amendment to the information of such a nature that a certified copy of the amended information should have been served? We have already stated that we regard this amendment one of form, rather than of substance. It was the correction of a mistake made in the first name of the deceased, and in the very nature of things it could not have resulted in misleading, surprising, or in any other manner affecting the substantial rights of this appellant. It did not change the nature of the offense, or could not in any way operate to the prejudice of the accused. It could not have been a good cause for delay, as no postponement or continuance of the cause was asked for on account of
II. The second cause of complaint is, that the trial court erred in overruling the challenge for cause made by the accused to the jurors Alphin, Kerke, Green and Ashlock. One of these jurors remained on the panel, and all the others were peremptorily challenged by the appellant, and he thereby unjustly exhausted three of his peremptory challenges. It is said that the jurors Alphin, Green and Ashlock testified on their voir dire examination that they had formed an opinion as to the guilt or innocence of the accused that would require evidence to remove. We quote the answers of Alphin to some of the questions propounded:
“ Q. Havé you formed any opinion as to the guilt or innocence of the defendant ? A. I think I have.
“Q. Have you that opinion now? A. Well, I hardly know; if what I heard should turn out to be true, yes, I have..
“Q,. Well, nothing has occurred to change your mind as yet? A. No, sir.
“Q. It will require something to change your mind? A. Why, yes, there would something new have to come up.
“Q. Different from what you have heard ? A. Yes.
*500 “Q. Then it would require evidence, would it not, to change the opinion you have? A. I expect, if it was different from what I have heard.”
The juror Green stated that, while he had expressed no opinion, there was an impression on his mind produced from reading accounts of the murder in the newspaper, and from what he heard at the time it occurred, as to the guilt of the accused, that would require some evidence to remove. He also stated that, according to the general opinion and the press, the accused was guilty. These two men were twice challenged for cause by the accused, but each challenge was overruled, and they were finally challenged peremptorily by the accused. The degree of fixity of the opinion touching the facts in issue, as tending to disqualify the juror who entertains it, varies considerably in the reported cases. In most courts of last resort it is held that an opinion does not disqualify if it is based on rumor or newspaper statements, and the juror says upon oath that he can give an impartial verdict on the evidence. In some states this rule has become statutory. But if a juror have an opinion as to the guilt or innocence of the accused, even if based solely upon newspaper reports, so fixed as to require evidence to remove it, he is not competent, although he may believe that he can render an impartial verdict on the evidence.
It is said by Mr. Justice VALENTINE, in the case of The State v. Miller, 29 Kas. 43, that —
“Every person charged with a criminal offense, in Kansas, has a right to be tried ‘ by an impartial jury.’ (Const., Bill of Rights, §10.) Now, is a juror who possesses an opinion with respect to the guilt or innocence of the accused, and who has 'no doubt’ as to the correctness of his opinion, an 'impartial’ juror? And is a juror who, having such an opinion, and who would continue to entertain the same until it should be removed by evidence, an impartial juror? Suppose that this opinion was that the defendant was guilty: then, would it be possible for the juror to presume that the defendant was innocent, until the contrary was proved ? Would he not rather presume that the defendant was guilty, until the contrary was*501 proved ? Section 228 of the criminal code requires that every defendant in a criminal prosecution shall be ‘ presumed to be innocent, until the contrary is proved/ Would the juror, in the case supposed, be competent under this section? Besides, § 205 of the criminal code provides that ‘ it shall be a good cause for challenge to a juror, that he has formed or expressed an opinion on the issue or any material fact to be tried/ Now, would the juror, in the case supposed, be competent under this section? But it may be said that the opinion of the juror in the present case was founded merely upon rumor. Now, there is nothing in the constitution, or in the statutes, providing, or even intimating, that a juror who has formed an opinion upon rumor only may be competent to serve in the case. It may also be said, in the present case, that the juror stated upon his voir dire that he had no bias or prejudice against the defendant, and would be governed entirely by the evidence in the case in making up his verdict, and that he believed that he could try the case impartially. The juror was probably sincere in stating this; and he probably could state the same again with the same sincerity, even though he may have heard all the evidence introduced on the trial of the cáse. Indeed, it is probable that every juror who tried the ease could honestly state, if called upon to try the case again, that he believed that he had no bias or,prejudice against the defendant, and would be governed entirely by the evidence in making up his verdict; and that he believed that he could try the case impartially. Men are seldom conscious of being biased or prejudiced, or of being in such a condition that they could not try any case impartially, and be governed entirely by the evidence introduced on the trial of the case.
“The fact, in the present case, that the juror had an opinion with respect to the guilt or innocence of the defendant, and that he had no doubt as to the correctness of his opinion, and that his opinion would remain until it should be removed by evidence, was sufficient to render the juror incompetent to serve in the ease; and we think that the court below erred in overruling the defendant’s challenge to the juror for cause.”
Exactly to the same effect are the cases of Jackson v. The State, 77 Ala. 18; Polk v. The State, 45 Ark. 67; Andrews v. The State, 21 Fla. 598; The State v. Ricks, 32 La. An. 109; Stephens v. People, 38 Mich. 739; Olive v. The State, 11 Neb. 1; People v. Carey, 96 N. Y. 376; McHugh v. The State, 38
The errors noted compel a reversal of the cause, and the other questions so earnestly discussed by counsel on both sides need not now be determined, as they may not arise on another trial.
We recommend that the judgment be reversed, and a new trial granted.
By the Court: It is so ordered.