36 Wash. 441 | Wash. | 1904
The appellant was convicted of the crime of perjury, and appeals from the judgment and sentence pronounced against her.
The information upon which the appellant was first
rested was filed on November 29, 1901. To this information the appellant filed a demurrer on the ground that it did not state facts sufficient to constitute a crime, which demurrer the trial court, after argument heard thereon, overruled. On December 21, 1901, the state
The appellant first contends that the several orders, of the court referred to, permitting the withdrawal of the informations filed and the filing of new ones against her, amounted to such a gross abuse of discretion as to entitle her to a discharge, and to a dismissal of the prosecution against her. She concedes that it is largely a matter of discretion with the trial court whether or not the prosecution may amend the information in the course of a criminal proceeding, but she contends that the circumstances here were such that the amendment operated to her prejudice, and deprived her of substantial rights. She urges that, when the court overruled the demurrer to the
It is doubtless true that, if the rulings of the trial court complained of prevented the appellant from having a fair and impartial trial on the merits of the controversy, or if they deprived her in any way of a substantial right, giraranteed her by law, which would entitle her to a judgment of acquittal without a determination of the merits, the rulings amounted to error, and she is now entitled to have such a judgment directed in her favor. But we are unable to see in what way the court’s rulings could have any such result. It is not error for a court to allow the information to be withdrawn, and another more perfect one be substituted in its stead. State v. Gile, 8 Wash. 12, 35 Pac. 417; State v. Hansen, 10 Wash. 235, 38 Pac. 1023; State v. Lyts, 25 Wash. 347, 65 Pac. 530. BTor was it error to do so after the court had first considered it and adjudged it sufficient, hfo litigant- has a vested right to have an error perpetuated in the record.
In the case before us the order of the trial court permitting the information to be -withdrawn, and another one filed in its stead after trial, not only did not violate any legal right of the appellant, but was directly within the court’s powers and duties. The appellant is not, therefore, entitled to a reversal of the judgment followed by an order directing her discharge from custody.
Of the errors assigned which call for a new trial, the most serious are on the rulings of the court to the challenges for cause, made to several jurors when being examined touching their qualifications to sit as such.
Juror Kilby testified, that he had heard the facts of the case discussed, and had read newspaper accounts concerning it; that he had both formed and expressed an opinion as to the guilt or innocence of the defendant; that he had that opinion at the time he was being examined and would have it until it was removed by evidence.
Juror Duncan testified, that he had heard parties state what purported to be the facts in the case, and had probably talked to a juror who had set on the first trial of the defendant; that he had both formed and expressed an opinion as to the guilt or innocence of the defendant, and had such an opinion at the time he was being examined; that he would retain that opinion until removed by evidence.
Juror Guttenberg testified, that he had formed an opinion as to the guilt or innocence of the defendant, and had that opinion still; that his opinion was such that it would require evidence to remove it, and that his mind was not unbiased as to the merits of the case; and that if he was sworn as a juror he would enter on the trial having an opinion as to the guilt of the defendant.
The examinations of jurors Babcock, Decker, and Ford were not dissimilar. Each acknowledged having formed an opinion which was so far fixed that it would require evidence to remove it. Each of the jurors, however, after testifying substantially as above, were thought to qualify themselves by saying, in answer to leading questions put to them by counsel for the state and by the court, that they could, or believed that they could, try the defendant fairly and impartially on the law and evidence as it should be given them on the trial, disregarding their previously formed opinions; and it was because of such answers that challenges for actual bias interposed to them were overruled.
It seems to be conceded by the state that these jurors were subject to challenge for actual bias under the rule announced by the earlier decisions of this court, particularly by the cases of Rose v. State, 2 Wash. 310, 26 Pac. 264; State v. Coella, 3 Wash. 99, 28 Pac. 28; State v. Murphy, 9 Wash. 204, 31 Pac. 420; and State v. Wilcox, 11 Wash. 215, 39 Pac. 368; but it was thought these cases had been modified by later decisions, and that jurors now, although having opinions on the merits of the controversy, who make answer that they can, or believe they can, disregard their preconceived opinions and try the case
The same thing may be said of the cases of State v. Boyce, 24 Wash. 514, 64 Pac. 719, and State v. Farris, 26 Wash. 205, 66 Pac. 412. In the latter case, all of the former decisions of the court were cited, and it was pointed out specially that the answers of the juror in the case then before the court were not the same as in those cases where the answers were held to disqualify. State v. Croney, 31 Wash. 122, 71 Pac. 783, may more nearly support the state than any of the cases cited, but it is evident that the court did not,, even in that case, intend to lay down the rule that jurors who had both formed and expressed an opinion upon the question of the guilt of the defendant were not subject to challenge for actual bias. This becomes evident when we recall what was said concerning the testimony of the juror to whom the challenge was interposed. Speaking of such testimony, the court said:
' “The whole testimony of the juror shows that he did not intend to state that he had any fixed opinion in regard to what he had read of the matter, but that it was*448 simply an impression from such reading, without any knowledge of whether what he had read was the fact or not. The amount of credit given to newspaper accounts differs very larg’ely with the individuals who read them, and yet it can scarcely be denied that some impression is made on the mind of every reader who gives time enough to an article to read it at all. But such an impression as this is not such an opinion as would disqualify a juror from passing upon the guilt or innocence of a defendant based upon the testimony adduced at the trial, under proper instructions by the court.”
But in the case before us there is no escape from the conclusion that the several jurors had opinions, not impressions, on the question of the guilt of the defendant. These opinions were so far fixed that not only would evidence be required to remove them, but in some instances they had been expressed, and in others an actual bias against the defendant had been created. Hone of the “eases from this court, even the most liberal, hold such jurors qualified. If a juror has an opinion as to the guilt or innocence of the defendant, in any given case, so far fixed that evidence would he required to remove it, he is disqualified as a juror in that case, notwithstanding he may answer that he can, or believes he can, disregard such opinion and try the case according to the law and the evidence that is given upon the trial. There are minds, doubtless, that are capable of laying aside preconceived ideas and opinions, and of arriving at conclusions from particular facts, disregarding and not considering others. But this is an attribute of mind that is acquired by special training and education, and is not an acquirement possessed by the ordinary juryman.
We are of the opinion, therefore, that the appellant did not have a trial before a fair and impartial jury, such as is guaranteed to her by the constitution and laws, and that
The information upon which the appellant was convicted was sufficient both in form and substance. The other matters complained of need no special mention, as they will not recur on a retrial of the cause.
The judgment is reversed, and a new trial awarded. Hadley, Hount, Anders, and Dunbar, JJ., .concur.