By the Court,
Aрpellant was indicted for the crime of arson. The accusation was that on a certain' day, at Verdi, in Washoe county, Nevada, he feloniously, willfully and maliciously did burn and consume a certain lot of cordwood, of the property of F. Katz and P. Henry, then and there being of the value of four hundrеd dollars. Defendant was convicted of arson in the second' degree, and he appeals from the judgment and all orders made in the case, including that overruling his motion for a new trial.
1. Many objections are made to the indictment, but after-careful examination we are satisfied that all arе without merit,, and that the demurrer thereto was properly overruled.
2. The bill of exceptions shows that, during the trial of the-cause, at the different adjournments, but before final submission of the case to the jury, the district attorney and appellant and his counsel consented in open court that the jury might seрarate, and the defendant waived all objections to such separation; whereupon, by order of the court, the jury were permitted to separate, after being duly charged by the court as required by law.
It is claimed that the court erred in allowing a separation under the circumstancеs stated.
The statute (C. L. 2004) provides that ‘ ‘ the jury sworn to try an indictment for a misdemeanor may, at any time during the trial, in the discretion of the court, be allowed to separate. In all cases, on the trial of an indictment for felony, the jurors sworn shall be kept together until they are finally discharged.by the court from further consideration of the case.”"
It is urged by appellant that, under the statute, the court had not power to allow the separation complained of, with or without consent, and that the effect thereof is to render-the verdict void; and, second, that the jury while separated were tampered with to his prejudice.
It.becomes necessary, then, to inquire whether appellant
That without consent it would be grossly irregular to permit the jury to separate in a trial "for felony, there can be no-doubt; and that the court, in its discretion, may refuse to act-on the consent, is equally clear. (State v. Mix,
Jurisdiсtion cannot be given by consent, and under the constitutions of different states it has been decided, oftentimes, that in trials for felony, and especially in capital cases, the-right of trial by jury, as it existed at the time of the adoption of the common law, cannot be waived. And yet the same courts have held that, in many other respects, constitutional as well as statutory rights may be waived.
Our constitution provides that ‘ ‘ the right of trial by jury shall he secured to all, and remain inviolate forever.” In State v. McClear,
' The constitution of Iowa provides that “ the right of trial by jury shall remain inviolate, * * * but no person shall be deprived of life, liberty or property without due process оf law.” "
In State v. Kaufman,
The supreme court held that the defendant, with the consent <of the state and of the court, could waive a statute enacted for his benefit; that he could consent to go to trial with but eleven jurors, and that a trial in that manner, with such consent was not prohibited by the constitution.
The decision may be read with interest and profit, even by those of diffеrent opinion. We pass no opinion upon the correctness of this decision.
The Iowa constitution also provides that, “In all criminal prosecutions * * * the accused shall have the right * * * to be confronted with witnesses against him,”
In State v. Polson,
In People v. Lightner,
“As a general rule a defendant may waive any statutory right or proceeding. * * * We entertain no doubt that a prisoner may expressly waive any formal steps and plead, when called up for arraignment, and there can be no good reason why a defendant (present personally and by counsel) should not bе held to have waived any details of the proceeding's which constitute the arraignment when, as in this case, he asks for time to plead, which of itself admits the existence of the indictment and knowledge, or opportunities for acquiring knowledge, of its contents.”
The constitutions of most, if not all of the states, provide that ‘ ‘ no person shall be subject to be twice put in jeopardy for the same offense.” Still it is settled law that a prisoner’s consent to the discharge of a previous jury is an answer to a plea of former acquittal, although such’plea would have been good and a bar tо further prosecution without such consent. (Peiffer v. Commonwealth, 15 Pa. St. 470; Bish. Crim. Prac. vol. 1, sec. 112.)
Although the law requires challenges for actual bias to be tried by triers appointed by the court, it is held in People v. Rathbun,
A plea of guilty to an indictment, whatever may be the grade of the crime, will be received and acted upon if it is made clearly to appear that the nature and effect of it are understood by the accused. (Cancemi v. People, supra.)
In Wisconsin the statute provided that no рerson should be tried for a felony without being present at the trial. In Hill v. The State,
It was held otherwise in Prine v. Commonwealth, 18 Pa. St. 104.
It should be remarked that generally where it has been held that a separation of the jury, before final submission, is fatal, even though there is consent of both parties and the court, the trials were for capital offenses, and as is said in Cannon v. The State,
The statute in relation to the separation of juries above quoted, prescribes the method of procedure, without reference to consent or waiver, just as it does in relation to arraignment, challenges to grand and trial jurors, and many other things that need not be mentioned. But it does not prevent a waiver of its privileges.
If the jury had separated without the defendant’s consent., either with or without the order of the court, the burden оf proof would have been upon the state to show that the separation did not prejudice his case, but with the consent and order the burden of showing abuse remains upon the defendant.
He did not, however, consent to more than separation, and if there is legal proof that any of the jurоrs were tampered with or misbehaved themselves, or that anything else occurred which is ground for new trial, such facts must be held to have their full weight and influence. (Bebee v. The People,
We think the irregularity complained of, if such it may be called, was cured by defendant’s consent and waiver, and that the separation does not, per se, invаlidate the verdict. (Vol. 3, Wharton on Crim. Law, sec. 3,175; Cannon v. State, supra; State v. Jones,
So, should we consider the clerk’s certificate as proof that these affidavits were filed before the motion for a new trial was heard, as they purport to have been, still he does not certify that the transcript contains copies of all the affidavits and papers in the case; and if we can consider these findings of thе court, as they are presented, we are unable to say that the affidavits are the ones referred to by the court as having been presented and read. There may have been other affidavits on file in the case which were used in support of the motions, instead of those embodied in the transcript.
3. The bill of exceptions shows that the district attorney, in opening the case, stated to the jury that he expected to prove that there were ten or eleven fires in the town of Verdi, and that such proof would be offered and made for the purpose of showing the fire chargеd in the indictment was not accidental, but of willful origin. It also shows that at the trial, P. Henry, one of the owners of the wood described in the indictment, who had already testified without objection, that he
The district attorney stated to the court that he desired to introduce this testimony to show that one motive of the defendant in setting the fire charged was to alarm Katz and Henry, touching .the safety of their property exposed to fire, and thereby secure employment from them as a watchman; and that the purpose of this testimony was to reflect upon this Motive. The court admitted the testimony offered for the purposes mentioned and no other.
Other testimony of statements made by defendant at previous fires was admitted for the same purpose.
The bill of exceptions does not contain all of the evidence,, but it is shown that the evidence relied on by the state to sustain a conviction was greatly, if not entirely, circumstantial.
We think Henry’s testimony tended to show the fire charged, in the indictment was not accidentаl, and that the testimony of the other witnesses was admissible as tending to show motive.
Under the court’s instructions, the jury must have found that the defendant set the fire charged, and in connection with the proof of that fact, the testimony in question tended to' show that he did it “wilfully and maliciously.” (Wharton on Crim. Law, sec. 635 a, et seq. and 649.)
4. Complaint is made that counsel for the state, in opening; the case to the jury, and in their final argument, made statements not justified by the evidence, and constantly aimed to prejudice the minds of the jury against the defendant.
There is nothing before us, of which we can take notice, to sustain this claim; but should we consider the affidavit made to sustain it, it would not help defendant, because it nowhere appears that he objected to the conduct complained of. (Ames and Payne v. Potter, 7 R. I. 269.)
Other grounds for a new trial were stated in the motion, but being abandoned here, they will not be noticed.
The judgment and orders appealed from are affirmed.