27 Kan. 581 | Kan. | 1882
The opinion of the court was delivered by
This was a criminal prosecution for murder in the first degree. The defendant was convicted and sentenced, and he now appeals to this court. Only two questions are presented to this court: First, it is claimed that the information upon which the defendant was prosecuted does not state facts sufficient to constitute the offense of murder in the first degree; second, it is claimed that two incompetent jurors, along with ten other jurors, were allowed to hear and determine the case.
The next question is seemingly more difficult, for there are authorities which seem to sustain the position for which counsel for the defendant contend, though we think the weight of authority is on the other side. Two of the jurors who found and rendered the verdict in this case had, during the war of the rebellion, voluntarily borne arms against the government
It has also been held that the right to object because of the incompet.ency of a juror, may be waived in civil cases, even where the parties do not know of such incompetency until after the. trial. (Amherst v. Hadley, 18 Mass. 38; Jeffries v. Randall, 14 Mass. 205; Daniel v. Guy, 23 Ark. 51.)
And in criminal cases, even in prosecutions for murder, where the facts are known, an objection to the competency of a juror comes too late, if it is made after verdict. See the following capital cases: The People v. Coffman, 24 Cal. 230; Lisle v. The State, 6 Mo. 426; Keener v. The State, 18 Ga. 194.
It has also been held in criminal cases, where the parties did not know the facts, that an objection to the competency of a juror must be. made before the verdict is rendered, or it will be too late. (The King v. Sutton, 8 B. & C., 417; Gillespie v. The State, 8 Yerg. 507.)
And the same rule seems to apply in capital cases as in others. (Chase v. The People, 40 Ill. 352; Costly v. The State,
See also in this connection, Montgomery v. The State, 3 Kas. 263. This was a criminal case, though not a capital case.
The principal authorities upon the other side are as follows: The State v. Babcock, 1 Conn. 401; Guykowski v. The People, 2 Ill. (1 Scam.) 476; Schumaker v. The State, 5 Wis. 324; The State v. Groome, 10 Iowa, 309; Rice v. The State, 16 Ind. 299; Hill v. The People, 16 Mich. 351.
The case of The State v. Babcock, 1 Conn. 401, has been virtually overruled by the later Connecticut decisions above referred to. -And the case of Guykowski v. The People, 2 Ill. (1 Scam.) 476, has been actually overruled by the later Illinois decision above referred to. In the ease of The King v* Sutton, 8 B. &. C. 417, it is held that “alienage is a ground of challenge to a juror, and if the party has an opportunity of making his challenge, and neglects it, he cannot afterward make the objection.” In the case of Chase v. The People, 40 Ill. 352, it is held that “alienage in a juror is not a positive disqualification — it simply enables him to excuse himself if he chooses to claim the exemption, or it is a ground of challenge, and nothing more.” In the case of Costly v. The State, 19 Ga. 614, it is held that “the non-residence of a juror, being but a cause of challenge propter defectum, can and consequently must be made by the prisoner before the juror is sworn, and it makes no difference whether such want of qualification was known or unknown at the time the juror was sworn.” In the ease of The State v. Bunger, 14 La. An. 465, it is held that “where a juror can be challenged for cause, the right must be exercised before the juror is sworn; and a verdict cures the defect.” In the case of The State v. Patrick, 3 Jones (N. C.) L. 423, it is held that “it is too late after a juror has been taken and accepted by the prisoner, and has served on the trial, to except to him for incompetency.” In the case of The State v. Bone, 7 Jones (N. C.) L. 121, it is
The last five cases cited are all capital cases, and the case cited from Barnewall & Cresswell was an indictment for a conspiracy. In the case of Gillespie v. The State, 8 Yerg. (Tenn.) 507, it is held that “ it is no ground for a new trial in a criminal case, that one of the jurors trying the issue was one of the grand jury who found the bill of indictment. The objection to the juror must be made by challenge before he is sworn, or it is waived.”
As before stated, the fact that said two jurors were not electors was not a positive and absolute disqualification to them to serve as jurors, but only a ground for challenge. If it were a positive disqualification, then the trial would have been a nullity — precisely the same as though it had been had before ten men only; and if the verdict had been in favor of the defendant, the state might have treated the verdict as no verdict, and put the defendant upon trial again for the offense charged against him. We suppose that no one will claim that this could be done. The fact that said two jurors were not electors could not have prejudiced any of the substantial rights of the defendant. Undoubtedly they tried the case as fairly and impartially as though they had been electors. If the disqualification of the jurors had been such as would have predjudiced any of the substantial rights of the defendant, it might be that the defendant would have a right to a new trial because of such disqualification; but where the disqualification does not prejudice any substantial rights, we do not think that any new trial should be granted because of the disqualification. The defendant, by failing to object to the jurors before they were sworn, and by failing to attempt to ascertain whether they were electors or not, waived the disqualification, and rendered the jurors competent to hear and determine the case.
The judgment of the court below will be affirmed.