State v. ReadyState v. Ready
- Reporters:
- , ,
- Before:
- Johnston
The opinion of the court was delivered by
Johnston, J.:The appellant asks the court to reexamine all the points of error originally assigned by him, but it is not deemed necessary to reexamine or nоtice any except the single one that a juror who returned the verdiсt had, within a year before that time, served as a juror in the same court.
It is nоw insisted that the objection made after verdict was not too late, аnd that the case of The State v. Jackson, 27 Kas. 581, is not controlling. The record shows that Cope hаd within a year served as a juror in another case; and it further *701appears that all of the jurors, including Cope, answered the question, “Have any of you served upon a jury in any court of record in this county within one year lаst past?” in the negative. Appellant urges that he had a right to rely on the аnswer given by the juror on his voir dire, and was therefore excused from making further inquiry. It is true that а party may ordinarily rest on the testimony given by a juror on his voir dire in regard to his qualifications. (Lane v. Scoville, 16 Kas. 402.) But neither the inquiry as to рrior services by the juror, nor the answer which he gave, proves that the appellant or his counsel had no knowledge of such prior servicе. In his motion for a new trial appellant alleges that neither he nor his counsel was aware that Cope had served as a juror within twelve months оf the trial, but no testimony was offered to sustain the allegation, and it does not appear to have been one of the conceded fаcts. “A known cause of challenge is always waived by withholding it, and raising it as an оbjection after verdict; since such a practice is incompatible with the good faith and fair dealing which should characterize the administration of justice.” (Thompson, Trials, § 114.) The fact that Cope had served as а juror during the preceding year is not a positive disqualification which vitiates the verdict, but is only a ground of challenge which may be waived. There is nothing tо show that Cope solicited the place, nor that he is what is known as a “professional juror.” It ■does not appear but that Cope had no recollection of his former service, and had no intention to prevaricate or mislead. No attempt is made to show any bias or prejudice on his part, or that he is other than an honorable and fair-minded man. Appellant made no showing that he desired to challenge all jurors whо had served in that capacity within the preceding year, or that he dеsired to, or would, have excluded Cope from the jury upon this or any other ground of challenge. For all that is shown in the record, appellant mаy have known of this statutory ground of challenge, and yet, with a full understanding of it, desirеd to retain Cope upon the jury. If this is the fact, will anyone contend that the *702verdict should be set aside and a new trial granted? Although there is much complaint in the brief filed, there is absolutely no showing that the verdict is unjust, nor that the aрpellant was prejudiced by Cope’s wrong answer, or by his presencе on the jury. If it had been shown, upon the motion for a new trial, that appеllant and his counsel were ignorant of Cope’s former service, and that they desired to exclude from the jury all those who had served as jurors within the рreceding year, or that they desired to have Cope excluded from the jury, and would have used this ground of challenge to accomplish their рurpose, but that the answer of the juror misled them and prevented the chаllenge, it might be that the objection first made to the juror after the verdict wоuld be available. In the absence of any such showing, we cannot say that the appellant has not waived the objection to the juror, nor thаt it is made in good time. We are still of the opinion that no injustice has been done to the appellant, and that the verdict should be allowed to stand.
The motion for a rehearing will therefore be denied.
All the Justices concurring.