17 N.H. 171 | Superior Court of New Hampshire | 1845
The first exception was settled substantially in the case of Pierce v. The State, 13 N. H. Rep. 556. We have no doubt of the right of the court and the corresponding duty of the court to permit an inquiry to be made whether persons, returned to serve as jurors, are capable of discharging (and, we might add, willing to discharge) the duty which the law imposes upon all jurors, under the sanction of a solemn oath. If we should find, upon such an inquiry, that any juror was determined to disregard his duty and violate his oath, it would be clear that he was unfit to sit in the jury-box; and if, instead of a determined disregard of his duty, he imagines that he is conscientiously opposed to the discharge of that duty, and therefore cannot perform it, the mischief which would be done to the administration of justice is the same as if he was determined wantonly to disregard it. His motive may be better, but his conscience, or what he imagines to be such, which in some instances is perhaps but another name for his will, cannot be set in opposition to the law of the land, at the same
The statute of this State provides for the punishment of murder, and it divides that crime into two degrees; murder under certairt specified circumstances being murder in the first degree, punishable with death ; and all other murder being murder in the second degree, and punishable by imprisonment. It is as much the bounden duty of the jury, if the facts clearly sustain a case of murder in the first degree, to find the prisoner guilty of murder in that degree, without regard to the punishment awarded to that species of crime, as it is to find the prisoner guilty of murder in the second degree, vdien the offence committed has not been attended with the circumstances which constitute murder in the first degree. The law has not intrusted the jury, or the consciences of particular jurors, with any discretion upon this point.
The next exception relates to the ruling of the court, that it was not a sufficient legal objection to a juror that he had heard about the ease, if he had formed no opinion and was sensible of no bias. This ruling was made after other jurors, who had answered to the same effect, had been passed by, without any determination upon the sufficiency of the objection.
We are entirely clear that this forms no legal exception to a juror. There is nothing in the statute which indi
In order not only to secure, as far as possible, a jury without bias, but one which even the prisoner should be satisfied stood impartial, the court has, in several instances, where the juror, upon his examination, said that he had heard much said respecting the case, ordered that he should be passed by; not because that was ground of challenge, but to give the pi’isoner the greatest possible chance of an impartial jury. That is what was done in this case, and the fact that some jurors had been passed by in this way did not preclude the court from subsequently ruling that it was not a cause of challenge. If this position needed support it might be found in the opinion of Williams, J., 3 Vt. 577, Boardman v. Wood. If the court erred it was in admitting the objections of the defendant to too great an extent, of which he cannot complain.
Upon the trial, the defendant excepted to the admission of certain evidence, tending to show his acts and confessions.
It appeared that, soon after the arrest of the defendant, he was asked where he was the day before, and told that they wanted him to give an account of himself through the day, and to tell it quick; and, on his giving a general answer that he supposed he was at Meaderborough, he was asked, “where there?” and, when he replied, “at Mr. Hanson’s,” the inquiry was, “what Hanson’s?” It is undoubtedly true that the defendant was not only pressed to state particularly where he was the day previous, but that he was urged to make his statement expeditiously. The design seems to have been to induce him to make his statement without taking time to consider, and frame one for the occasion. We can make no more of it, upon-the evidence. There is nothing to show that threats were used; that he might have been induced to make a false statement through fear; and we fail to discover in these
The next question was, whether he committed the murder ? and the magistrate who issued the warrant then said to him that he “ had better tell the truth.” For this reason the court ruled out the defendant’s answer. The evidence having been thus rejected, there is no exception to this ruling, and it does not come before us directly for revision. As, however, evidence was subsequently admitted upon the ground that any supposed influence of hope upon the mind of the defendant, from this declaration, must have been dispelled by the intervening circumstances, we take occasion to say, that while the ruling has certainly very respectable authority to support it, we are by no means satisfied that judges, in their anxiety to preserve all the rights of the accused, have not gone farther in excluding confessions than the principle required them to do. It is unquestionably true, that there have been some lamentable convictions based upon the confessions of the accused, which suggest the necessity of great caution in weighing such confessions, and in considering how far they are supported or rendered doubtful by other evidence. But the entire exclusion of the evidence is quite another thing. The principle of admission and exclusion is well settled, and founded upon a most satisfactory basis.
If a confession is made by a prisoner under such inducements of hope or fear as exclude it, a subsequent declaration to the same effect, if made after the inducement must have ceased to operate, and under circumstances which show that it could have had no connection with the hopes or fears which had been excited, is admissible in evidence. 5 C. & P. 318, Rex v. Richards; Jebb’s C. C. 157, Rex v. Bryan ; 2 East P. C. 658; 10 Pick. 490, Commonwealth v. Knapp; 4 C. & P. 221, Rex v. Clewes; 6 C. & P. 404, Rex v. Howes, There are authorities the other way. 5 C. & P. 535, Rex v. Cooper; 9 Pick. 507, Commonwealth v. Knapp. But the principle seems to be established. Otherwise, inducements being once held out, all the subsequent declarations of the prisoner would necessarily be excluded, under whatever circumstances they might be made. lie might even boast of his crime, with the assurance that his exultant declarations could not be used against him on his trial. The nature and character of the inducement which was held out may therefore become material; and in some eases the question, whether the influence had ceased to operate prior to the subsequent declarations,'may be one of some difficulty, in which
We have no difficulty, however, on this point in the present case. The hope here — assuming that hope was excited by the declaration of the magistrate that he had better tell the trath — must have been of the slightest possible character, and the circumstances which intervened between that time and the period when he made the confession which was admitted, can leave no shadow of doubt whether the last confession was made through some lingering belief, arising from the declaration of the magistrate, that if he still continued to confess, he might find favor. The evidence is very strong upon this point. Immediately after his answer which was ruled out, he was told by one of those present that he would probably be hung, and by another cautioned against confessing. Upon his examination, the same day, the magistrate advised him to plead not guilty; and notwithstanding this was followed by a voluntary statement of the defendant — which was ruled out because of the possible previous influence — the magistrate told him he would record the plea of not guilty. On the examination he was ordered to be committed to jail. A statement which he made on the way was excluded, because he had thus been told that he had better tell the truth. On arriving at the jail the sheriff said, in his hearing, that he had better take care howr he confessed (or what he confessed), that it might (or would) ■ be the worse for him. He was then committed to prison, and after he had been .imprisoned a month — a part of the time with the extraordinary precaution of irons, to prevent the possibility of escape — with no inducements held out to him, he made an additional declaration, which the court admitted in evidence, upon the ground that under the circumstances any hope excited in the first instance, by his being told that he had better tell the truth, must have been entirely extinguished.
In considering the probable reason for this last confession, we must not lay out of the ease the other circumstances which intervened between that and the first. There was evidence that certain property described in the case was stolen from the house where the murder was committed, on the same day. — After the defendant’s examination, and while he was on his way to the jail, he went into a pasture and picked up a wallet, containing a knife, several pieces of coin, and some tobacco. ITe claimed the wallet and one of the pieces of money, and requested to have the tobacco. His farther declarations were excluded. The knife and one of the pieces of coin were identified as part of the property stolen from the house of Hanson on the day of the murder. — And after he had heard the sheriff" say that he had better take care how or what he confessed, as it might be the worse for him, he was, at his request, taken to a stable where he had been on the morning of the arrest, and there he pointed out a place from which another wallet was then taken, containing other money, answering the description of a part of the money stolon, and he at that time claimed the wallet. His further statement, made at this time, was also excluded on account of the previous declaration, that he had better tell the truth. But the testimony admitted
Under such circumstances he might well have supposed that a farther confession was not likely to affect the case either way, and for that reason have been ready to make the statement.
The remaining questions arise out of the defendant’s application for a new trial, founded upon evidence tending to show that some of the jurors had expressed opinions of his guilt before the trial. After the jury were impanneled, and three days had been consumed in the introduction of testimony, the defendant objected to proceeding farther with the trial, and proposed to prove that Lewis Cook, and others of the jurors, had, before the commencement of the trial, expressed opinions that the defendant was guilty.
The court could not be required, at that stage of the proceedings, to stop the case,' and enter into the question whether a juror stood indifferent when he was sworn. If the prisoner might have introduced evidence in support of such a motion, the government must have been allowed to controvert that evidence, and the trial be suspended until the question was determined. And if the jury could have been discharged on -a finding that one of them did not stand indifferent, the trial might have been resumed with a new jury, — if one could have been impanneled,— only to encounter a similar objection with a like result. It was proper that the information should be given to the court, as the basis of a future motion, as was done; 2 N. H. Rep. 351, Rollins v. Ames; but the objection to proceeding with the trial, was rightly overruled.
A motion is now made for a new trial, founded upon affidavits tending to show that Cook and three other jurors had thus expressed opinions before the trial.
The counsel for the defendant, at the time of taking the affidavit, objected to the testimony of the juror respecting the verdict he was in favor of rendering, on the ground that the State could not be permitted to prove what took place in the jury-room; but we are of opinion that the objection cannot be maintained. It is settled that jurors may be examined, when their verdict is brought in question. 6 N. H. Rep. 361, State v. Hascall, and authorities there cited. They were so examined without objection in the case of State v. Prescott, 7 N. H. Rep. 293-295. And although it is not competent for jurors to testify that they misapprehended the instructions of the court (4 N. H. Rep. 117, Tyler v. Stevens), or that they were not influenced by a particular circumstance (as, for instance, by certain papers before them), in finding their verdict, 5 N. H. Rep. 93, Page v. Wheeler, or to the motives and inducements on which they may have joined in a verdict, 16 N. H. Rep. 361; 14 Mass. 245, Bridge v. Eggleston, we perceive no sufficient reason, notwithstanding the ruling in McCorkle v. Binns, 5 Binney 344 (where it was-held that the juror may be examined to show that he did not make the declaration imputed to him, but cannot be questioned respecting the proceedings of the jury), why they should be excluded from stating, as a matter of fact, the verdict which they originally proposed to render.
The evidence also tends to show that Miles Buzzell, another of the jurors, said, a week or ten days after the murder, that if he was on the jury he would hang him (the defendant), certainly; and that at other times he said that he ought to be hung, and that if he was on the jury he would hang him. This juror denies that he ever said, to any one, that if he was on the jury he would hang the defendant, and testifies that he is not conscious that at the time when he was sworn he had formed any opinion of his guilt or innocence. He also, it appears, was in the first instance in favor of returning a verdict of murder in the second degree.
Evidence is offered, also, to show similar declarations by Enoch Ham, another of the jurors. This juror avers that he has no recollection of using any such expressions, and thinks he never did; if he did, it was not meaning any hurt, and in trifling -conversation; that he had not formed any opinion of the guilt or innocence of the defendant before the trial; that he had no bias or prejudice against him; that he was in favor of rendering a verdict of murder in the second degree, and that he was the last one who consented to render a verdict of murder in the first degree.
There is. further testimony to show that Joseph Daniels, another juryman, said that he thought the defendant was guilty, and that he ought to be hung. He, like the others, swears that he has no recollection of using any such language; thinks he did not; does not recollect
If it be assumed that all these j urors uttered the words attributed to them, it is hardly necessary to say that they are far from showing conclusively that the jurors did not, in fact, stand indifferent. W"e do not regard the testimony, standing alone, as impeaching the honesty of the jurors. It appeared from the examinations, made at the time of impanneling the jury, that the case had been a subject of conversation throughout all the county.
It was a matter of course, under the circumstances attending it, that it should be so; and it is but natural that expressions like most of those attributed to these jurors should be made, not only without any settled opinions upon the subject, but merely as a matter of conversation, forgotten soon afterwards.
The fact that three out of four of these very jurors were in favor of the most favorable verdict against the prisoner, and that one of them, whose expressions, as proved, were quite as strong as any of the four, was the last to yield his wish to render such a verdict, and to agree to the verdict which was rendered, serves to show most conclusively'that such expressions, in a casual conversation, standing unsupported by any thing to show ill-feeling, or a fixed belief, do not indicate, with any great degree of force, any settled opinion in reference to the actual guilt of the defendant. Still, we have no doubt that if the evidence now presented by the defendant respecting the expressions of opinion by those jurors, had been offered in support of a challenge, w?hen the jury was impanneled, it would have been regarded as sufficient, and the jurors set aside without farther inquiry, unless the proof of the language attributed to the juror should be distinctly contradicted. How, otherwise, could it have been ascertained, at that time, that the juror stood indifferent ? Such evidence was held to be sufficient to exclude a
At the time when the jury was impanneled, the court could not have had the evidence derived from the opinions of these jurors, upon the consultation of the jury, to show what slight weight should, in many cases, be attached to similar expressions in such a case. But the fact that the jurors were set aside would not have been conclusive evidence to show that the defendant had a right to have the jurors rejected without further scrutiny, if evidence could be offered to show that they stood indifferent.' The court, so long as there has been no difficulty, in procuring a jury, have been very much inclined to permit a prisoner’s objection to avail, giving him practically a selection of those in attendance; and thisinfavorem vitae, has doubtless been carried further than the strict right of the prisoner entitled him; of which this case is an instance. The practice in this State is probably not singular in this particular. Archbold says: “ It is not, in general, required that the party challenging shall immediately declare his cause of challenge, unless there be not a sufficient number of jurors remaining in the panel,” &c. 1 Archb. Prac. 207; 3 Vt. 577, cited above.
But the case, as now presented before us, has led to inqumies whether the mere expression of an opinion by a juror, in common conversation, without any thing to show ill-will, hostility, or a fixed determination or belief, is such a legal ground of challenge, under our statute, that the court are to inquire no farther; and whether, even if there were such cause of challenge, the juror, having passed unchallenged, and the fact being shown after the trial is in progress, the defendant is entitled, for such reason, to a new trial, as a matter of right.
Challenges are exceptions to jurors returned, when about to be impanneled for the trial of the case, and are of various descriptions. Challenges to the array allege an objection to the whole panel, and, if successful, set
A principal challenge is grounded on such a manifest presumption of partiality, that if the fact alleged be proved to he true, it unquestionably sets aside the array or the juror, as the cáse may be, because the fact shown leads to a presumption of partiality, not to be rebutted; and this may arise either from near relationship, or interest, or from the expression of an opinion, if that expression indicate malice, or even a fixed belief. In such cases there is no occasion to try whether the juror stands indifferent.
But a challenge to the favor leaves the question whether the juror stands indifferent to the judgment of the triers— the evidence adduced in support of the challenge leading to no presumption which may not be overcome by other evidence. Chitty says of the challenge to the array: “It is either a principal challenge, or for favor, the former of which is founded on some manifest partiality, and is therefore decisive, while the grounds of the latter are less certain, and left to the determination of triers.” 1 Chit. Crim. Law 487 [536]. And speaking of causes of challenge for favor, he says: “ As these circumstances do not necessarily imply partiality, they are no ground of principal challenge.” • In this State triers are not appointed, according to the mode of procedure at the common law; all challenges, by uniform practice, being determined by the court. 2 N. H. Rep. 850, Rollins v. Ames. But this fact seems to furnish no ground for disregarding the distinction between the principal causes of challenge, and challenges to the favor.
In the ease of a principal challenge, the court, like the
There are some authorities that the expression of an opinion by a juror respecting the matter of right, is a principal ground of challenge. It is so said in Bac. Abr., Juries, E, 5; and so in the case Blake v. Mills, 1 Johns. 316, which, being a certiorari from a justice’s court, seems not to have been very deeply considered. Coke, who is referred to by Bacon, does not say so, but, on the contrary, speaking of challenges froffer affectum, remarks: “It is said that a principal challenge is express favor or express malice.” Co. Litt. 157, a.
The weight of authority appeal’s to be that the expression of opinion, unless under circumstances indicating malice or ill-will, or. perhaps a fixed determination, is only a ground of challenge to the favor. In fact, it seems formerly not to have been regarded as a principal ground of challenge to a juror, that he had declared an opinion from his knowledge of the case. Thus in the section of Bacon’s Abridgement last cited, it is said: “ It is a good cause of challenge that a juror hath a claim to the forfeiture to' be caused by the conviction, or that he hath declared his opinion beforehand; yet this hath been
Mr. GMtty, speaking of principal challenges, says : “ In general, the causes of this nature which would justify a challenge to the array, on the ground of the presumed partiality of the sheriff, will be sufficient exceptions to an individual juror.”' And he adds: “An actual partiality may also be shown, as well as a supposed bias. Thus, if a juryman has expressed his wishes as to the result of the trial, or his opinion of the guilt or innocence of the defendant, with a malicious intention, on evidence of these facts he will be set aside.” 1 Chit. Crim. Law 441, 442 [542]; Jacob’s Law Dic., Jury, I; Rolle’s Abr., Trial, 655, pl. 7, 8. An anonymous case, 1 Salk. 153, does not seem to conflict with this view, for although it is there said that it is a good cause of challenge that the juryman had said the defendant was guilty, or would be hanged, the rest of the report shows that the allegation was, that if the juror had said this, it was under circumstances which Would charge him with misdemeanor, or misbehavior, and for that reason he would not be required to serve. The marginal note is, that “a juror may be examined to any matter criminal, or infamous, in order to challenge.” It is true that Lord Chief Justice Treby very persistently contended, in Cook’s Case, before cited, that any such expression of opinion that a prisoner was guilty, even before the juror was summoned, was “at least a scandalous misbehavior.” But that cannot be maintained.
Mr. Archbold says: “ The challenge to the polls for favor, is of the same nature with the principal challenge propter affectum, but of an inferior degree. The general rule of law is, that the juror shall be indifferent; and if it appear probable that he is not so, this may be made the
In fact our statute seems to imply that the mere expression of opinion may not furnish cause for setting aside the juror without farther inquiry, for although it provides that the juror may be inquired of “whether he has, directly or indirectly, given his opinion, or has formed an opinion, or is sensible of any prejudice in the cause,” it does not provide that such an expression of opinion shall be a principal cause of challenge, or a conclusive reason for rejecting the juror, but enacts, “that if it appears that any juror does not stand indifferent in any cause, he shall be set aside on that trial.” Rev. Stat., chap. 176, sec. 21.
That the usual practice of the court has been to allow an expression of opinion as a cause, of challenge, without farther inquiry, has very little tendency to give a construction to the statute, for the reasons already stated; more especially when it appears that the court have gone still farther, and passed jurors merely because they had heard much said respecting the ease, which no one ever imagined was of itself a cause of challenge.
This examination leads to the conclusion that the fact that a juror has expressed an opinion respecting the case, before he was summoned, is not necessarily a ground of principal challenge; or, in other words, a cause of challenge which requires the court, without farther inquiry, to set aside the juror. But, if the evidence adduced to
The court may, in its discretion, inquire under what circumstances the opinion was expressed, and, upon such inquiry, determine whether the opinion was merely a casual remark, which could have very little tendency to show bias, and which might be entirely overcome by other circumstances, so as to leave no doubt that the juror stands indifierent. If it should appear, on such inquiry, that the expression of opinion indicated malice, that would furnish conclusive evidence that the juror did not stand indifierent. Some of the language in the cases in New-Xork might lead to a supposition that it was a principal cause of challenge where there was no dispute about the facts, and that a challenge to the favor was to be submitted to triers only where the evidence relating to the expression of opinion was contradictory; but this seems not to be the criterion.
On this view of the case, the defendant is xxot shown to have had legal cause for principal challenge against the jurors, to whom he now excepts as having expressed opinions befoi’e the trial; and it follows, as a consequence, that he is not now eixtitled to a new trial, unless, upoxx the examination, at this time, of the circumstances shown in evidence, it appears that the jurors did not stand indifferent in the cause when they were impannelod.
The evidence before us does not servo to show that these jurors did not stand indifferent. Still less is there any thing indicating that they had any fixed belief, or any determination to find the defendant guilty; and the defendant, therefore, has not, in this view of the question, and on this evidence, entitled himself to have the verdict set aside. 8 Scam. 76, 79, Smith v. Eames; id. 84, Gardner v. People.
But we do not rest our opinion on this view alone.
The question now before us, stated in the most favorable terms for the defendant, is not wffiether there was good cause of challenge to some of the jurors, if he had had knowledge of the facts existing at that time, but whether, having had the benefit of all the safeguards interposed by the law in behalf of persons accused, to secure an impartial trial, he is now entitled to another trial, because he did not possess the knowledge of certain facts wffiich were as open to him as to any one else, and which might have led him to interpose valid objections to some of the jurors; whether there are now sufficient reasons to justify the court in setting aside the verdict, and sending this case to —what it could never have, if the formation of an opinion was a conclusive ground of challenge — a new trial. "With the limited extent of' the county, and the great publicity which the atrocity of the murder in the first instance, and two trials, with a full publication of the evidence, have since given to it; and, considering the difficulty in obtaining a jury on the last trial, we may well conclude that there is no probability that twelve jurymen, qualified in other respects, could be found in the county who had not formed some opinion respecting the case. Sending the case to a new trial, and rejecting all persons who had formed an opinion, would be, in other
Under such circumstances, there is no doubt that, according to the rules of the common law, as practiced in England, no new trial could be granted. In a capital case none is ever granted. If there has been an error in the trial, the prisoner is recommended by the court for a pardon, which is a matter of course upon such a recommendation ; and so he is pardoned for an offence which, on account of the error in the proceedings, it has not been legally made to appear that he ever committed. 2 Sumn. 46, and authorities cited.
But such is not the practice in this State. New trials are granted in all criminal cases, upon motion of the defendant, where there has been an error in the trial, even in cases of murder; 7 N. H. Rep. 287, State v. Prescott; and this without further inquiry whether injustice has in fact been done. If the prisoner has not been lawfully tried, it would be gross injustice to render judgment upon the verdict, upon any opinion of the court that the result wras right. The court in such case cannot entertain such an opinion.
But that is not this case. There has been no mis-trial. It appears that there was no error in the proceedings. The greatest possible pains were taken to secure to the defendant a most impartial trial. Not only all the jurors to whom he objected because they had formed an opinion, wore set aside, but some merely because they had heard much said respecting the case. Nearly two hundred and fifty jurors were called, before the jury was impanneled. The rulings were, as we have seen, very guarded against the admission in evidence of the defendant’s confessions.
The authorities which have been examined do not shake the view which we have thus taken of the case. They are to some extent apparently conflicting with each
If, in an action upon a promissory note, it should appear that there was no possible doubt that the defendant made the note upon asufiicient consideration, and that it still remained unpaid — his attempt to show payment having signally failed — it would hardly be deemed a good ground for sending the case to a new trial, that one of the jurors was of that degree of kin to the plaintiff as to have furnished principal ground of challenge on the part of the defendant, if he had been aware of the consanguinity. The same reason would hold good in a criminal case, where one of the jurors was under like circumstances of kin to the prosecutor.
Judgment on the. verdict.