59 Minn. 281 | Minn. | 1894
The defendant was convicted in the court below on an indictment under Penal Code, § 281, charging her with keeping an assignation house in the city of Duluth, was sentenced, and appealed to this court.
It appears by the bill of exceptions that, when the petit jury was being impaneled, the defendant challenged two of the proposed jurors for actual bias. In the examination of each juror as a witness under oath, he stated that he did not know the defendant, and knew nothing against her. He was then asked if he had heard any statement concerning the character of the house alleged to have been kept by the defendant, by reason of which he had formed an opinion as to the character of such house as being a
It does not appear by the settled case that the defendant exhausted her peremptory challenges, and on the authority of State v. Lawlor, 28 Minn. 216, (9 N. W. 698,) and State v. Kluseman, 53 Minn. 541, (55 N. W. 741,) the attorney general urges, that it was error without prejudice. We are not disposed to question the authority of those cases, but they are not cases where the defendant was prevented from discovering, by the use of proper questions, the bias, prejudice, or leanings of the juror. The error, if any, in those cases, was in retaining in the one case, and rejecting in the other, the juror after the examination was closed. The defendant in each case could intelligently exercise his right of peremptory challenge, — in the one case on the juror retained, and in the other case on jurors objectionable to him subsequently drawn.
But in the case at bar the defendant could not intelligently exercise her right of peremptory challenge. She not only was prejudiced in her right to challenge for cause, but also in her right to challenge peremptorily. Conceding that she has no right
It is true that the right to use the information acquired in the trial of a challenge for cause, in deciding whether to make a peremptory challenge, is a mere incidental right, but in the way the question arises it is a substantial right. The question arises in an attempt to excuse the error of the court. The excuse is that the defendant is not prejudiced, and to that it is a sufficient answer. The excuse is a sort of equity, and is met with a sort of equity entitled to just as much consideration. The defendant had a right to a fair and impartial jury. The excuse is that she had a fair and impartial jury, and therefore was not prejudiced by the error of the court. The answer to this excuse is that she does not know whether she had or not. She does not know whether she was convicted by the evidence produced in open court, or on the previous knowledge, information, or opinions’ of the jurors, and was not permitted to find out. If she had been permitted, as she should have been, to examine the jurors, and ascertain which ones were fair and impartial and which were not, and’ been allowed to strike off those who were not, she would not be-prejudiced, whether she struck them off by one kind of challenge or the other; but by reason of the error she was not permitted to ascertain which she should strike off, or .to ascertain whether she had an impartial jury or not, and we should not presume that she had such a jury. We are not unmindful of the fact that in the examination of jurors, especially in criminal cases, lawyers are often inclined to abuse their privileges; and, while the trial court is allowed much discretion on such examinations, there is a limit to that discretion. For this error the judgment appealed from must be reversed.
It is also assigned as error that the court permitted evidence to be given of the reputation of the house as an assignation house.. We are .of the opinion that the evidence was competent, at least-'
.(Opinion published 61 N. W. 450.)