*1 14,758. No. People.
Sukle 233) [2d] P. February
Decided George Mr. D. error. plaintiff Patrick, Byron Mr. Gerald General, Rogers, Attorney G. *2 McAuliffe, Assistant, E. for the people.
En Banc. of the opinion the delivered Justice Hilliard
court. a ver-
In a returned for murder prosecution of the penalty dict the first and fixed gqilty degree, at. death. Consistent followed. occurred of what out error arises urged
A on point statute, The arraignment. the time of defendant’s at “Every 452, 48, section C.S.A., provides chapter ’35 ** furnished, be *, shall murder with person charged indict- copy with a his previous arraignment, to and wit- jurors of the and a list [information], ment he arraignment to defendant’s nesses.” Preparatory information, upon of the a copy with supplied was witnesses; of the people’s the names was endorsed which nor was attached, not of the was jurors but list arraign- to his defendant to prior otherwise furnished counsel called omission, defendant’s this Noting ment. to thereon, thereto, and, objected predicated attention with the compliance demanded arraignment, client’s his enforced and reserved plea, his protested requirement, ruling. to adverse an exception an re to the in relation the statute Discussing de to jurors that a list supplied quirement he have “This not an we said: fendant before pleads, 5 In People, Stratton Colo. right.” unimportant 440, 4, 9 Pac. noticing Minich v. 8 Colo. People, case, we re-emphasized importance Stratton statute; but since in the provided by latter “right” case, “no whatever was this objection interposed upon either to or to ground arraignment impaneling
271 held the had been waived. trial,” to going we here; dissimi- It is like waiver obtained but urged attends, facts as will be noted. Not larity defendant not furnished a list of jurors pre- vious to the time he was called to he which plead, but the protested, and with notwithstanding, thereof, full knowledge ob- protesting defendant jecting submit In arraignment. support 40 People, cases of Imboden v. ruling court’s Colo. and Hendricks v. 142, 608, People, 90 Pac. theory are called to our attention. Pac. that since in addition the ob- is, prosecution arraign- defendant jection prior interposed raise man- ment, he not in some did again question ner he before trial waived proceeded, point. the Imboden while language employed opin- ion, abstractly and from apart considered what was be- *3 there be ing might discussed to hold that waiver thought the record resulted, shows that while in no that case list of the jurors was to supplied prior ob- arraignment, jection thereto was not made on that Rather, score. the was raised in support of a for con- motion tinuance the trial, and at a time when the list had been Neither in provided. case, that nor the case, Hendricks did the urge defendant the to failure furnish him with a list of the jurors to his previous arraignment and before he pleaded. Here, defendant, the enactment, emphasizing appropriate statutory and our announced doctrine that to invoking have a list of the arraignment before jurors is an improtant right, amply and made the timely the point. Hendricks it is further to observed, defendant fur- nished with list of the jurors to prior arraignment, but due ato continuance of the case be- generally, and fore the trial date was reached, a new panel had been summoned. day trial —not before —defendant demanded and received the new list. Denial his motion continuance, for advanced the on ground that day a list prior trial with
he not to “was served in- here jurors,” statute he had invoked not that plead, was the al- to called volved he was when opinion. See, leged Hendricks error discussed App. People, 2 Pac. 470-471 also, Heller 773), opinion, that makes clear where, in the the court only prior arraignment time, time, is the and to may al- Here, as when defendant invoke statute. ready only apprehended appears, counsel not defendant’s rights presentation statute, his client’s under the but in proceeding, and Thus time. acted at the thereof having by prosecution, lie it does been thwarted having agency, arraignment plea and been with that appearing, say that and time manner presented question again and have defendant should in other failing he manner, stood waive right? doubt the soundness of Contention. We perceive, only pertinent Clearly, point is as we when arraignment, reasonably, urged previous and, Why may prosecuting officer, it be waived. having statute, his been directed should attention proceeding arraignment, on not have insisted why, holding understandable; scales, the court pause, give inexplicable. did not Denial to defendant statutory procedural involved, of the benefit rule party timely adequately invoked to whom right, important declared, we have constituted was an readily ap- potential error, and needless to have been prehended reason, however, For the and avoided. point, pres- on the ently is to be reversed another any discussed, and since further trial the to be pause present point do arise, cannot we not nice con- *4 gravity. sideration of its cognizance
Upon own motion we take of our following: appears jury It that when the de had time, for considerable came into court liberated writing question submitted whether on a verdict degree, penalty first of murder fixed at life
2VS imprisonment, defendant would be for eligible parole. Counsel for parties both and the being present, defend- ant well, the court queried counsel as to the pro- priety answering the jury’s question. response favorable to being such action, the court announced to jury answer to their question was “yes.” The verdict is ample evidence that the ¡jury may well have been influenced by that answer. think the subject
We of the jury’s was not inquiry concern, of their and the court’s thereon, advise counsel, even with the consent of given their pres- ence, was Refusal highly improper. defendant’s coun- sel to consent action of the court, in the circum- stances would have been appearing, fraught with grave to his client. In peril necessary sequence, statute considered, had to jury determine: (1) Whether murder; defendant was guilty (2) if whether guilty, of the first or the second degree; and if (3) of the first degree, whether the punishment should be life imprison- or ment death. at arriving conclusion on the several questions calling jury determination, the circum- considered, stances the law to act on jury the history and facts of the case as disclosed evidence, and no other consideration. In impor- tance, the extent of the punishment in a murder case to the only second question guilt; and once the jury determines has guilt been established in the first what shall degree, penalty solely jury solu- be— tion —becomes prime question. The information which the elicited from was applicable event punishment was fixed at life imprison- ment. It undoubtedly encouraged speculate on what the chief executive of the state, at some future time, acting pursuant authority of law apart from under law which the judiciary proceeds, might conclude at justice required his hands. Prejudicial error See obvious. Polly People, 107 108 P. (2d)
274 reversed.
Let the judgment and E. Bouck Mr. Justice Justice Francis Chief Otto Bock dissent. dissenting.
Mr. Justice Otto Bock
Relative
I
to concur.
regret my inability
of the
decided,
first
I
that
opinion
assume
the jury
to furnish
court does not
the failure
hold that
error. As
list,
circumstances,
under
was prejudicial
comment.
therefore,
I make no further
question,
decided, I am persuaded
On the second point
as
jury
to the question
answer
the trial court
by
be eligible
parole
defendant would
whether
matter
It
a
not error.
was
of a life sentence
case
court,
that dis-
and
of the
discretion
within the sound
gen-
Unlike felonies
exercised.
reasonably
cretion was
responsi-
has the sole
cases
in homicide
erally,
murder,
punish-
degree
in first
bility
deciding,
This
is
or death.
perhaps
ment —life imprisonment
in the
When
jury.
cast
gravest
upon
responsibility
it is desirous of
a serious problem
deliberation of such
ver-
effect of its
concerning the
receiving
legal
advice
and
assist-
dicts,
it'is entitled to all
reasonable
instance
ance from the trial
which
present
here that under
There
no contention
was supplied.
legally
not properly
could
evidence
at the
arriving
Its action
the death penalty.
impose
human
the same
by
affected
of course
punishment was
determinations,
in all such
fallibility which
present
cannot,
very
or
jury,
whether
court
error,
events, be considered
prejudicial
nature of
intrude
tribunal,
should not
under
we, as an appellate
of any
In the absence
prejudicial
circumstances.
those
tome
be a
usurpation
error,
seem
would
for us to refuse to affirm
of the jury,
sole responsibility
its verdict.
based
opinion,
In a recent well-reasoned
State v. Carroll,
Wyo.
(2d)
29,
69 P.
a case in which the
very
facts are
similar to those in the case at bar, al-
*6
though the circumstances were somewhat more favor-
able to
Supreme
defendant than in the
instant
Wyoming
Court of
affirmed the death sentence. See,
p.
also, 23 C.J.S.,
1053, §1379; State v.
Barth,
N.J.L.
112, 116,
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