State v. McGraw

59 P. 178 | Idaho | 1899

SULLIVAN, J.

— The defendant was prosecuted by information for the crime of rape, convicted, and sentenced to imprisonment for a term of fifteen years. His motion for a new" trial was denied, and this appeal is from the judgment and order denying a new trial.

The first error assigned is, the court erred in excusing juror Butler on the ground that he was a client of the attorney for the defendant. Under subdivision 2, section 7834 of the Be-vised Statutes, a challenge for implied bias may be taken to a juror when such juror is a client of the opposing attorney. Counsel for appellant admits such relation existed between himself and said juror. We do not think the court erred in excusing said juror. If it was error, it was without prejudice, as defendant had not exhausted his peremptory challenges when he accepted the jury. (State v. Gordon, 5 Idaho, 297, 48 Pac. 1061.) And, further, said exception was not saved by bill, as provided by the provisions of section 7941 of the Bevised Statutes, or at all. Error in excusing a juror is not one of the grounds for which a new trial may be granted. (Rev. Stats., see. 7952.) It also appears in the record at folio 45 that both plaintiff and defendant waived all challenges as to the impaneling the jury.

The second error assigned involves the constitutional passage of the act under which the defendant was prosecuted and convicted. We have examined a certified copy of the House and Senate journals in regard to the passage of said act. It shows that said bill was duly printed, and read three times in each House; that on its final passage in each House said bill was read at length, section by section, and a yea and nay vote taken thereon, which vote was entered on the respective journals; and that said act was passed by a majority of all members present in each House. The act was duly enrolled, signed by the speaker of the House and president of the Senate, and approved by the governor. The bill was regularly passed, and the court did not err in so holding.

Several other errors are assigned, which go to the introduction of evidence, to the instructions given, and to the corroboration of the prosecutrix, all of which we have examined with some care, and in none of them do we find error. The judgment of the court below must be sustained and it is so ordered.

Huston, C. J., and Quarles, J., concur.