State v. Phair, 48 Vt. 366

State v. Phair

48 Vt. 366 | Vt. | 1875

The opinion of the court was delivered by

Royce, J.

The first exception taken was to the denial of the court of the right of the prisoner to challenge certain of the jurors who were empanelled, for cause. The cause for challenge relied upon was, that the jurors were not impartial, and hence that they were not such jurors as the prisoner, under Article 10 of the constitution of the state, had the right to be tried by. The only evidence of partiality shown, upon which the right to challenge the juror John P. Sheldon could be predicated, was, that he admitted that he supposed he had, from reading accounts of the transaction in newspapers, previously formed some opinion as to the guilt of the respondent, but did not think he had'expressed any opinion, and added, that if he knew his own position, he thought he was not so prejudiced but that he could try the case upon the evidence given in court. The juror S. C. Tarbell said he had read an account of the matter in the Rutland papers; had heard the matter talked of considerably, and formed an opinion in regard to the guilt or innocence of the respondent, but had no bias or prejudice in the matter, and did not know that he had ever expressed an opinion. The statement of the juror A. N. Loveland was substantially like that made by Tarbell, except that he, when asked if he had any recollection of expressing an opinion about the guilt or innocence of the prisoner, replied that he did not recollect that he had, but that the subject had been talked of freely, and he might have done so. There being no evidence of the expression of an opinion by cither one of the jurors, the right of challenge would rest upon the fact that they had formed an opinion. The question, whether having formed an opinion would disqualify a juror, was directly before this *376court in Boardman & Foot v. Wood & Wood, 3 Vt. 570. On em-panelling the jury in that case, one of the jurors, in answer to an inquiry put to him, stated that he had heard most of the case on a former trial, and then formed an opinion in relation to it, might have frequently expressed it, though he could not remember whether he had or not. Counsel objected to the competency of the juror. The court overruled the objection, and decided that though the juror had formed an opinion, still, if he had not expressed it to others, he was not disqualified. Judge Williams, in giving the opinion upon the exception taken to the above ruling, after a thorough and. exhaustive review of the cases, both civil and criminal, bearing upon the question, states the conclusion to be, that “ upon an examination of the authorities, we are inevitably led to the conclusion that the decision of the County Court on this question was conformable to the common law as found in the English reports, and as recognized in the courts of the United States and this state, and must be considered as correct, as far as any principle can be settled by authorities.” And in State v. Clark, 42 Vt. 629, Ch. J. Pierpoint, in commenting upon the above case, says, that as far as his experience and observation extended, the rule there laid down had always been observed and practiced upon, both by the courts and bar in this state; and that the practice had been the same in civil and criminal cases. So that there can be no doubt upon these authorities but that the rule is as it was held to be by the County Court. But it is claimed that the rule is an unreasonable one; and the court are called upon to adopt a rule that will make the formation of an opinion a disqualification, and which will exclude every man from the jury box who has formed an opinion, irrespective of the evidence or circumstances upon which the opinion was formed. Men frequently form an opinion from reading an account of a transaction in newspapers, as did the jurymen in this case. Such opinions are formed, relying upon the truthfulness of the published account, and are subject to be changed and altered by contradictory accounts. Men form opinions almost imperceptibly, from hearing or reading ; and opinions thus formed do not generally disqualify them from rendering a fair and impartial judgment when duty *377calls for its exercise. Persons accused of crime need intelligent jurors to judge of the truth or falsity of the charges preferred against them, and the adoption of the rule contended for would operate to exclude reading, intelligent men from the jury box, and their places would have to be supplied by the ignorant and incompetent. If any new rule is to be adopted, it seems to. me it would be more reasonable not to make the formation and expression of an opinion the arbitrary test of a juror’s competency, but to permit an inquiry to be made as to the facts and circumstances upon which the opinion was formed ; and if upon such inquiry it should be found that the juror was free from bias or prejudice, and could and would fairly and impartially judge of the matters to be submitted to him, he should be held to be competent.

The exceptions to the admissibility of the opinions of the witnesses who were offered as experts upon the question of handwriting, considering that the question is so presented as to be revisable in this court, was properly overruled. An expert is defined to be a person that possesses peculiar skill and knowledge upon the subject-matter that he is required to give an opinion upon. The witnesses were shown to possess skill and knowledge that entitled them to the character of experts. They possessed knowledge and skill superior to that shown to have been possessed by the witness Nichols, in State v. Ward & LaVigne, 39 Vt. 225; and it was held in that case that the testimony of Nichols was properly admitted.

The evidence of Cain was properly admitted. It became important to show, as bearing upon the question of the guilt or innocence of the respondent, where he was on the 8th day of June. He claimed that he was at Brandon at a circus on that day, and returned to Rutland on the midnight train. Cain was permitted to testify that he was acquainted with the respondent, and attended the circus at Brandon on that day, and returned to Rutland on the midnight train, and did not see the respondent. This evidence was clearly legally admissible as tending to show that the respondent was not at Brandon on the 8th of June. • The only question that could be made in relation to that kind of evidence would be as to the weight it was entitled to, and there is *378no complaint made but that the jury were properly instructed in regard to that.

There was no error in admitting the entries made by Parmenter, as evidence. The entries were made by him in the regular course of business, and it was his business to make them, and he had died since making them. The only use that could be made of the entries as evidence was, to identify the watch described by them. Ever since The Earl of Torrington's case, reported in Salkeld, it has been customary to admit such evidence. The principle seems to be founded in good sense and public convenience. The rule is well stated by Ch. J. Parker, in Welsh v. Barrett, 15 Mass. 379, that what a mau has actually done and committed to writing when under obligation to do the act, and in the regular course of the business he has undertaken, and ho being dead, is admissible. See also Price v. Earl of Torrington, 1 Smith Lead. Cas. (3d ed.) and notes; and 1 Phil. Ev. 347, and Cow. & Hill’s and Edward’s notes.

None of the other exceptions taken upon the trial have been urged in this court, and we have failed to discover any error that entitles the respondent to a new trial.

The respondent takes nothing by his exceptions, and judgment is rendered upon the verdict.