70 P. 856 | Utah | 1902
Tbe appellants were, on an indictment for grand larceny, convicted and sentenced, tbe said Mickle
One of tbe grounds of tbe motion for a new trial, and tbe only one relied upon by appellants, counsel, is as follows: “That tbe juror J. W. Killian, who sat in tbe above-entitled case, was disqualified to act as such juror; be having, prior to tbe time of being called and accepted to serve as such juror, formed and expressed an unqualified opinion and belief that tbe defendants, and each of them, were guilty as charged in tbe complaint.” In the examination of tbe juror T. W. Killian upon bis voir dire, be stated, in substance, that be bad not beard tbe witnesses in tbe case talk about it, but bad beard others talk about the case and express opinions, and believed that tbis bad made some impression on bis mind, but that be did not consider men guilty until they were proved to be guilty; that be did not think be bad formed or expressed an opinion either way as to tbe guilt or innocence of the accused ; and that be would be governed entirely by tbe evidence, and law given by tbe court. In support of tbe motion for a new trial, counsel for tbe accused introduced tbe affidavit of Ered A. Killpack, in which be averred that in tbe presence of Dr. Pearson, Victor Olsen, Hyrum Larsen, Ira E. Browning, and others, at tbe drugstore of Dr. Pearson, tbe juror J. W. Killian, on tbe day before be was accepted as a juror, in speaking of tbe ease, said, in substance, tbe following: “That tbe peculiar actions of P. P. Mickle and McDonald when Halvorsen met them on tbe desert gave them away. Their actions at that time showed that they were guilty. That it looked as though 'Swasey was to draw tbe attention
While it is well settled that when, in a criminal case, a juror has, before Ms selection, made such statements as those set out in the affidavits introduced by the defendants in this case, and who upon his voir dire testifies as the juror Killian did, and such statements were unknown to either the accused or his attorney until after the trial, a verdict of guilty should, on motion of the accused, if made in proper time, be set aside, and a new trial granted (State v. Morgan, 23 Utah 212, 64 Pac. 356, and cases there cited; Maxwell, Cr. Proc. 729, 730; 12 Enc. Pl. & Prac. 456, subd. 3; 17 Am. and Eng. Enc. Law (2d Ed.), 1168), it is also an equally well-settled rule of law that the verdict of grnlty should not be set aside on such grounds except when it is clearly
The motion was properly overruled for another reason,
It is ordered that the judgment be affirmed and the case remanded.