61 Wash. 398 | Wash. | 1911
The defendant was convicted of the crime of assault with intent to commit sodomy, and has appealed from the judgment entered upon the verdict. The first question raised is that the requirement that a juror shall be a taxpayer (Laws 1909, page 131; Rem. & Bal. Code, § 94), conflicts with the sixth article of amendment to the Federal constitution, which guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury. This amendment has no reference to prosecutions in state courts for the violation of a state law. 8 Cyc. 1091; Cooley, Const. Lim., p. 46; Twitchell v. Commonwealth, 7 Wall. 321; Edwards v. Elliott, 21 Wall. 532; Pearson v. Yewdall, 95 U. S. 294; Maxwell v. Dow, 176 U. S. 581. In the Maxwell case the accused was tried for a felony in the state of Utah, in the state court, before a jury composed of eight jurors, and convicted and sentenced to imprisonment. The constitution of Utah provides “that in courts of general jurisdiction, except in capital cases, a jury shall consist of eight persons.” It was contended, among other things, that the clause quoted violated the sixth amendment of the Federal constitution. The court
It is also contended that the requirement that a juror shall be a taxpayer is violative of § 21 of art 1 of the state constitution, which provides that “the right of trial by jury shall remain inviolate.” A juror was not required to be a taxpayer under the laws of the territory when the constitution was adopted. The precise point raised is that the legislature is powerless to prescribe any qualification for jury service in addition to that required at the time of the adoption of the constitution. This contention, we think, is without merit. While we think the point was ruled adversely to appellant’s contention in State v. Newcomb, 58 Wash. 414, 109 Pac. 355, we will proceed to a consideration of the question as if it were not controlled by that case. In Redford v. Spokane St. R. Co., 15 Wash. 419, 46 Pac. 650, in considering another statute fixing the qualifications for jury service, this court said: “That the act requires that jurors shall be householders — a qualification not required by the old law —furnishes no sufficient reason in our judgment for holding that it is unconstitutional.” The guaranty, says Johnstone, C. J., in Wheeler v. Caldwell, 68 Kan. 776, 75 Pac. 1031, means “that the right of trial by jury shall be and remain as ample and complete as it was at the time when the constitution was adopted.” In Vaughn v. Scade, 30 Mo. 600, it was held that the guaranty means a jury of twelve men, but that “the non-essentials of that institution such as concern the qualifications of jurors, the mode of summoning them,
“We think that the term ‘jury,’ as it is used in the constitution, means twelve competent men who are free from all ties of consanguinity and all other relations that would tend to make them dependent on either party. It means twelve men who are not interested in the event of the suit, and who have no such bias or prejudice in favor of, or against, either party as would render them partial toward either party;”
and that the statute which took away the right of the state and the accused to challenge a juror for actual bias contravened the constitutional guaranty, in that the right of the parties to have the case tried by an impartial jury was of the essence and substance of the guaranty. We fully acquiesce in this view. In Work v. State, 2 Ohio St. 296, it is said that the term “jury” has been variously defined as “twelve good men and true,” “neighbors and equals,” “peers” of the parties to the litigation. In Stokes v. People, etc., 53 N. Y. 164, 13 Am. Rep. 492, it was held that “the mode of procuring and impaneling” the jury may be regulated by statute, but that the right of trial by an impartial jury must be preserved. In People v. Harding, 53 Mich. 48, 481, 18 N. W. 555, 19 N. W. 155, 51 Am. Rep. 95, the court said that all the essential incidents of trial by jury as it existed at the time of the adoption of the constitution are protected by the guaranty. In Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 68 N. W. 53, 60 Am. St. 450, 33 L. R. A. 437, it was said that the three essential attributes of a jury trial are numbers, impartiality, and unanimity.
In State ex rel. Mullen v. Doherty, 16 Wash. 382, 47
The testimony of the state shows that the act charged was committed in a barn between the hours of ten and eleven.
The appellant cites, in support of this assignment, Buell v. Aberdeen State Bank, 58 Wash. 407, 108 Pac. 951, and State v. Oppenheimer, 41 Wash. 630, 84 Pac. 588. The objectionable evidence in these cases was not a part of the res gestae. We think the second act was admissible as a concomitant part of the criminal act charged in the information.
During the examination of one of the state’s witnesses, a boy thirteen years of age, objections were several times interposed on the ground that the questions were leading. In ruling'upon the objections, the court remarked: “Oh, the boy is only thirteen years of age.”- “This is a very young
“But we do not think it was intended by this provision to prevent the judges from giving counsel the reasons for their rulings upon questions presented during the progress of a trial, or to prohibit them, in all cases, from stating, when necessary, the facts upon which they base their conclusions.”
State v. Hyde, 20 Wash. 234, 55 Pac. 45; State v. Crotts, 22 Wash. 245, 60 Pac. 403; State v. Thield, 36 Wash. 365, 78 Pac. 919; State v. De Pasquale, 39 Wash. 260, 81 Pac. 689, and State v. Phillips, 59 Wash. 252, 109 Pac. 1047, cited by the appellant, were decided upon facts so dissimilar that they are not in point.
In Hicks v. United States, 2 Okl. Cr. 626, 103 Pac. 873, cited by the appellant, one Fred Warren was the only witness who connected the defendant with the crime charged. During his cross-examination, the trial judge interrupted counsel
There is no merit in the assignment that the evidence is insufficient to support the verdict. Two boys who were eyewitnesses to the crime testified positively to its commission. A discussion of the evidence would be neither profitable nor edifying.
The state suggests that the appellant was sentenced under the wrong statute, and that he should have received a heavier sentence. That question cannot be reviewed on this appeal. The judgment is affirmed.
Rudkin, C. J., Fullerton, Parker, and Mount, JJ., concur.