16 Nev. 101 | Nev. | 1881
By the Court,
There is a growing .conflict of the authorities in the United States as to the true meaning of constitutional provisions similar to ours that “no person shall be subject to
Upon the facts presented by this appeal we do not feel called upon to express our views upon this subject, although it has been elaborately argued by appellant’s counsel. It may, and will, be admitted, for the purposes of this opinion, that jeopardy attaches when the jury is sworn to try the case. All the authorities which adhere to this view of the question admit, as has been decided in this state, that there are exceptions to the rule “ based upon urgent necessity.” (State v. Rover, 10 Nev. 398.) The only question, therefore, which we are asked to determine is, whether or not a necessity existed for the discharge of the juror Dorsey after the jury was complete and sworn to try the case, and whether it was proper for the court to impanel another juror in his stead.
The facts, as they appear of record, are as follows: “That on the twenty-third day of July, A. D. 1880, in the regular course of said trial of defendant, * * * twelve jurors had been duly examined upon their voir dire, accepted by plaintiff and defendant, and severally duly sworn * * * to well and truly try the matter in issue between the said state of Nevada and the said J. T. Pritchard, and a true verdict render therein according to the law and the evidence * * *; that the juror, J. 0,. Dorsey, had beed carefully examined on his voir dire touching his qualifications to serve as a juror in said cause, and had stated on such examination that he was not opposed to capital punishment, and that he had, or entertained, no such conscientious scruples or opinions as would preclude him from finding a verdict of guilty in a case where the punishment would be death if the evidence Avarranted such verdict; that after said tAvelve j urors had been SAVorn to try said cause * * * and before any evidence had been introduced, * * * defendant’s counsel, by leave of court, asked the said jury the
“Question by Mr. Woodbnrn (of counsel for the prosecution) — Would you render a verdict of guilty upon circumstantial evidence alone, without any eye-witness being put upon the stand, as to the commission of the crime? Answer — No, sir.
“Ques. — Suppose there was no witness to the transaction, no. person- who saw the defendant shoot Humphrey Symons (and) take his life, and his guilt depended upon circumstantial evidence, would you render such a verdict, a verdict in the first degree, when you knew the penalty was death? Ans. — No, sir; I would not. I wasn’t examined upon that subject before.
“Mr. Woodburn — We challenge him on the ground that he is opposed to capital punishment.
“The Court — You will be excused.
“Mr. Soderberg (counsel for defendant) — We object to his being excused, and except to the ruling of the court.
“The court overruled the objection, allowed the challenge, and excused the juror. * * * That no other reason existed for discharging said juror except the one hereinbefore stated. Thai neither plaintiff, defendant, or said juror had been guilty of any intentional fraud or deception in procuring the swearing of said jurors to try said cause, except so far as the answers made by the said juror on his voir dire may operate as such legal fraud.”
After the juror Dorsey was excused, the court proceeded,
If the juror Dorsey had made the same statement before he was sworn as a juror, as he did afterwards, it would have been the duty of the court to have then and there discharged him. The statute, in clear and explicit terms, declares that any juror entertaining such conscientious opinions “shall neither be permitted nor compelled to serve as a,juror.” (Crim. Pr. Act, sec. 340; 1 Comp. L. 1964.)
If circumstantial evidence was introduced, and it was clearly sufficient to warrant a verdict of guilty, it would have been the duty of the juror to find such a verdict. He said, in effect, that he could not discharge his duty in this respect; that he would not find a verdict of guilty, where the death penalty might be enforced, in a case of circum-stautial evidence, no matter how convincing and clear such testimony might be. He was an incompetent juror. His answers were very similar to those given by a juror in The People v. Ah Chung. In that case the court said: “It clearly appears from the examination of the juror that he would not convict, in a capital case, on circumstantial evidence; and we think that the challenge was properly sustained. There are many cases in which the evidence on the part of the prosecution is entirely circumstantial, and to 'hold that a party is a competent juror who will not convict on such evidence would in many cases defeat the ends of justice.” (54 Cal. 402.) In the language of the supreme court of Illinois: “It would be but a mockery of justice to go through
This brings us to the discussion of the vital question: Was the court authorized to discharge the juror, against the objection of the defendant, after the jury wras sworn to try the case ? In considering this question, it must continually be borne in mind, that Dorsey was, on account of his conscientious opinions, incompetent to serve as a juror; that his incompetency was not made known to the court, or counsel, until after he was sworn; that his incompeteney was of such a character that it could not be waived; that it was unnecessary for the prosecution to interpose any challenge to the juror, and that the statute makes it the imperative duty of the court not to permit any such person to serve as a juror. It -must be remembered that it was not the fault of the prosecution, nor of the court, that the incompetency of the juror was not discovered until after the jury was sworn, and that the knowledge of the juror’s incompetency was brought out by the voluntary act of defendant’s counsel.
In Ex parte Maxwell (11 Nev. 436) it was held, that sections 396 and 397 of the criminal practice act (1 Comp. L. 2020, 2021) should be construed with reference to the constitutional restriction in respect to second jeopardy, and that under these provisions the trial courts are invested with power, in the exercise of a sound legal discretion, to discharge a jury after the cause has been submitted to them, without the consent of the defendant, and without the discharge constituting a legal bar to a future trial, in all cases of manifest necessity, whether such necessity arises from some'physical cause occurring during the trial or deliberation of the jury, or from the inability of the jury to agree upon a verdict; that this power is not one of absolute, uncontrolled discretion, but must be exercised in accordance with established legal rules, and is always subject to review by the appellate court.
In O'Brian v. The Commonwealth, the supreme court of Kentucky, in construing a similar statute, said: “It could not have been intended by the section supra (248) that the
All the authorities agree “that where the jury has been discharged upon necessity the prisoner may again be put upon trial.” (State v. Nelson, 26 Ind. 368.) But what shall be considered as constituting such a necessity as to justify courts in exercising this power is not so well settled. The power is one, as before stated, of judicial discretion to be exercised soundly, not arbitrarily, according to the peculiar facts and circumstances of each particular case.
The most common of the class denominated as physical necessities that have been held to justify the courts in discharging a jury, although it has been sworn, is where the presiding judge becomes so ill as to be unable to proceed with the trial (Nugent v. State, 4 Stew. & P. 72); or where a juror is prevented by sickness from attending court during the trial. (U.S. v. Haskell, 4 Wash. 402; Hector v. State, 2 Mo. 166; State v. Curtis, 5 Humph. 601; Commonwealth v. Fells, 9 Leigh, 613.)
There.is another class of cases where the courts have been justified in discharging a jury upon what is-termed the necessity of doing justice, which arises from the duty of the court to prevent the obstruction of justice by guarding its administration against all fraudulent practices, such as tampering with the jurors after they are sworn (Poster’s Crown Law, 27; State v. Wiseman, 68 N. C. 203); or the fraudulent introduction into the panel of a perjured juror, who at the instance of the defendant has procured himself to be selected on the jury for the purpose of acquitting the prisoner. (State v. Bell, 81 N. C. 591.)
Prom an examination of the numerous authorities, bear
It is for this reason, as well as upon the ground of physical necessity, that courts have always acted in discharging a jury whenever it clearly appears that they are unable to agree upon a verdict. The general principle is well stated by the supreme court of Ohio in the case of Dobbins v. State: “It is the right of the state, and one of the most solemn and responsible of its duties, to punish crime; and it is the absolute right of any one accused of crime to demand ‘ a speedy public trial by an impartial jury,’ and a verdict, declaring 1ns guilt or innocence, according to the due course of law. The one is indispensably necessary to the safety of the community and the preservation of peace and order, and the other for the protection of the innocent, and to prevent the oppression which might otherwise be practiced by those having charge of state prosecutions. The problem has always been to preserve intact both of these important rights; and the object has been completely accomplished by holding the accused liable to answer until, in the regular course of judicial proceedings, the tribunal charged with the issue, without molestation or interference, has had the fullest and amplest opportunity to pass upon the question of his guilt; and by making every interference on the part of the government by which a verdict is prevented, while a reasonable hope remains that one may be rendered, an absolute bar fo his further prosecution. If a verdict can not be obtained upon one trial, another may be lawfully had; and the unavoidable delay which ensues is the fault of no one. For the better protection of the accused, the law requires unanimity in the jury before a verdict can be rendered; but to allow, on the one hand, the ignorance, perversity, or even honest mistake of a single juror to paralyze the administration of justice, and turn loose upon the community the most dangerous offenders, or, on the other, to
The supreme court of the United States, in discussing this question, said: “We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” (United States v. Perez, 9 Wheat. 580.) Applying this principle to the case in hand, we think the court was justified in discharging the juror Dorsey.
How can it, consistently, be said that no necessity existed for his discharge ? He was, as we have already shown, an incompetent juror.. By an inadventure upon his part he had kept from the court and counsel all knowledge of his incompetency until after the jury was sworn to try the case. This was in effect, although not so intended by the juror, a fraud upon the court, and it was its plain duty, when the facts came to its knowledge, to protect itself from the “honest mistake” of the juror, and not to allow the administration of justice to be defeated by keeping such a person upon the jury.
Let us suppose for a moment that in answer to the question of defendant’s counsel the juror had said: “When I was asked whether I had ever expressed any unqualified opinion as to the guilt or innocence of the defendant, I did not fully understand the question, and hence answered it erroneously. The truth is that I have expressed the opinion that the defendant is guilty of murder, and ought to be hanged. I entertain this opinion now, and itis so firmlyfixed in my mind that no evidence will remove it.” Can there be any question as to what the court should do in such a case? No. It Avould be the duty of the court to immediately discharge the juror. Why? Because it Avould be a mere farce, a mockery of justice, to compel the defendant to be tried by any juror entertaining such an opinion. Noav the
Tbe principle of tbe statute is, that any person entertaining such an opinion is unfit to be a juror in such a case,, because bis conscience will not permit him to find the de-> fendant guilty when death will be tbe consequence of tbe verdict,, however conclusive tbe evidence may be. Such a person is unfit; be bas prejudiced tbe question; be has made up bis verdict without bearing the evidence, and ought to be excluded upon common law principles. “It would be a, solemn mockery to go through the forms of a trial with such a jury, or even with one such juror. The prisoner is sure to be acquitted,, independent of tbe question of guilt or innocence. It .would be a misnomer to call such a proceeding a trial.” (People v. Damon, 13 Wend. 354.)
We have not overlooked tbe provisions of section 334 of tbe criminal practice act, -which declares that tbe challenge to an individual juror “must be taken when tbe juror appears, and before be is sworn, but tbe court may for good cause permit it to be taken after tbe juror is sworn, and before tbe jury is completed.” (1 Comp. L. 1958.)
Tbe state, as well as tbe defendant, is required to interpose its challenges before tbe jury is completed. This provision of tbe statute must be complied with. Whenever if appears from tbe examination, upon bis voir dire, that a
But it can not, with any sound reason, be urged that this provision of our statute has any application to a case, like the present one, where the disqualification or incompetency of the juror, although a ground of challenge, is not, without any fault of the challenging party, discovered until after the jury is completed.
In Stale v. Taller, immediately after the jury had retired from the court-room to consider their verdict, and before the verdict was rendered, a member of the bar informed defendant’s counsel that one of the jurors (not naming him) had, prior to the commencement of the trial, expressed to him the opinion that defendant was guilty of the crime charged against him. The attorney did not bring this fact to the notice of the court until after the rendition of the verdict, when he moved the court to arrest the judgment on the ground of the bias of the juror. This motion was reserved for the advice of the supreme court.
The supreme court, in deciding this motion, said that if the facts had been brought to the knowledge of the court before verdict, it “would have sent for the jury and taken the case from them without hesitation,” and declared the rule tobe that if counsel “knows of an objection to the panel before the verdict is rendered, and in time to prevent the verdict, and obtain a rehearing before another jury, and does not avail himself- of the opportunity, he must be lrolden to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict,-and that can not be tolerated.” (34 Conn. 294.)
In State v. Allen, 46 Conn. 531, each of the jurors, before being accepted and sworn, was examined in behalf of the st'ate and defendant as to his qualifications. Upon the second day of the trial, and after witnesses had been examined in behalf of the state, the counsel for the defendant stated to the court that they had been informed and be
In Steward v. The State (15 Ohio St. 155), after tbe jury was regularly sworn, tbe opening statement of counsel made, and a witness bad been sworn and placed upon tbe stand, one of tbe jurors arose and said that be was one of tbe grand jurors which found tbe indictment against tbe defendant. Whereupen tbe plaintiff’s attorneys “ asked defendant’s attorneys what they intended to do. And, in answer, tbe defendant’s attorneys asked tbe attorneys for tbe plaintiff what they intended to do. • Thereupon tbe court inquired of tbe plaintiff’s attorney^ what they intended to do. To which they replied that they would like to have tbe court suggest what they bad better do. Tbe court then asked tbe defendant’s attorneys what they intended to do, and defendant’s attorneys replied that they intended to stand upon tbe defendant’s rights, and could not, nor would not do anything, or take any course to waive tbe defendant’s rights in any respect whatever.” After some further legal skirmishing and delay, “ tbe court then asked defendant’s attorneys if they objected to proceeding with
In this connection we deem it proper to say, as a matter of practice, that we would have justified the court had it refused to allow defendant’s counsel to ask the jurors the general question as to their qualifications after the jury was complete. Counsel should not, in our opinion, have been allowed to fish, out of season, for some point upon which to lay a foundation for an exception, without, at least, first baiting his hook in a proper manner.. He should have been required, in advance, to show to the court, by affidavit or otherwise, that he had reason to believe, and did believe, ■that one, or more, of the jurors was disqualified or was incompetent to try the case upon some ground of which he was not aware at the time of the completion of the jury, and to state the facts upon which his belief was founded. We hesitated for sometime, before writing this opinion, whether it would not be a sufficient reply to the argument of appellant’s counsel, upon this branch of the case, to say that the •discharge of the juror Dorsey was brought about by the voluntary and irregular act of defendant’s counsel in asking a question that ought not, under the circumstances, ■to have been permitted by the court. But, owing to the earnestness of the arguments of the respective counsel, as well as the interest and importance of the issues presented, we deem it best to dispose of the question upon its merits. Especially, as from each and every legal standpoint that could reasonably be taken, the authorities sustain the action of the court in discharging the juror Dorsey.
But the question, in regard to which we at first entertained some doubt, and which is by no means as well settled, is, whether the court was justified in impaneling
In considering the facts of this case, in connection with the authorities to which our attention has been called, we have arrived at the conclusion that this action of the court Avas correct. The remaining eleven jurors were competent. No objection was urged against them. They had been selected, agreed upon, and accepted in the mode provided by law. No testimony had been offered. It seems to us that the discharge of an incompetent juror did not create a necessity for the discharge of the eleven remaining competent jurors.
In People v. Damon, supra, which was a trial for murder, after the fourth juror had been sworn in chief, and taken his seat, the district attorney inquired of him whether he had •conscientious opinions against finding a verdict of guilty for an offense punishable with death. The counsel for the prisoner objected that the inquiry was too late; that after the juror was sworn in chief he could not be objected to. Upon this branch of the case the supreme court said: “The regular practice is to challenge jurors as they come to the book to be sworn, and before they are sworn; but I apprehend this is matter of practice, and may be departed from in the discretion of the court. The object is to give the prisoner a fair trial; and if it be made to appeal’, even after a juror is sworn, that he is totally incompetent by reason of having prejudged the case, it is not then too late to set him aside and call another. * * * Hawkins intimates there are authorities the either way; but I apprehend no authority can be necessary to sustain the proposition, that the court may and should, in its discretion, set aside all persons who are incompetent jurors, at any time before evidence is given.” (To the same effect see Dilworth v. The Commonwealth, 12 Gratt. 689; Lewis v. The State, 9 S. & M. 119.)
In People v. Wilson, 3 Park. Crim. R. 202, after several of the jurors had been challenged and set aside, and one had been sworn, a juror named Haight was called, and ivas challenged by the prosecution on the ground that he was opposed to capital punishment, and could not conscien
In some of these cases the juror Avas set aside before the jury was complete, in Avhicli respect they differ from the case at bar; but the principles announced tend to support the conclusions Ave have reached.
In Stone v. The People, after the jury was SAVorn, and after
It necessarily follows from the views we have expressed, that the court did not err in instructing the jury that there was no evidence to sustain a verdict in favor of defendant upon his plea of former jeopardy. The instruction did not invade the province of the jury in deciding the facts of the
We do not believe that any of the evil results suggested by appellant’s counsel will ever flow from the effect of this decision. We are not unmindful of the rights of persons accused of crime, and have never hesitated, as the records of this court will show, to interfere in their behalf whenever any of their substantial rights have been infringed upon; but we are unable to see how this decision can ever be used to oppress or injure them or the state. We believe that it is in harmony 'vvith nearly all of the modern decisions, and that it accords with the letter and spirit of the criminal practice in this and other states, which has, as is expressed by the supreme court of Iowa (State v. Roth, 17 Iowa, 336), “sought to prevent persons convicted of crime from escaping deserved punishment on refined subtleties and black-letter precedents where no substantial interest or right has been prejudiced.”
We are of opinion that the record shows “good cause” for the action of the court; that the jurors were properly sworn to try all the issues raised in this case, and that the defendant is not entitled to be discharged or to have a new trial.
The judgment of the district court is affirmed.