55 Wis. 531 | Wis. | 1882
The appellant assigns but two causes for reversing the judgment rendered against him in this case: First, that four jurors, whose names were drawn from the jury-box during the process of impaneling the jury, were set aside by the court, on the motion of the plaintiff, for reasons stated in the bill of exceptions; and, second, that the testimony of two witnesses was received on the part of the plaintiff against the objection of the defendant, such witnesses being, at the time their testimony was given, convicts in the state prison serving out a sentence upon conviction of the crime of arson.
The objection made to the jurors who were excluded, so far as the record discloses, was undoubtedly made upon the ground that their knowledge of the English language was so limited and imperfect as to make it highly probable that they could not intelligently comprehend the proceedings in the course of the trial. It will be seen from the record that there is no exception taken to the justice of the verdict rendered in the action, nor that any error was committed by the judge in bis instructions to the jury, or in his rulings upon the trial as to the admission or rejection of evidence, except as to the evidence of the two witnesses above referred to, nor that the jury which was finally impaneled and sworn, and tried the cause, was not an impartial and fair jury; but the learned counsel for the appellant claims that it was error not to permit the four persons whose names were drawn from the jury-box to be sworn and serve as jurors in the case.
The only statutory provisions regulating the selection and impaneling of jurors are the following: Sec. 2524, R. S.: “ All persons who are citizens of the United States and qualified electors of the state shall be liable to be drawn as jurors,
It will be seen that these statutory provisions do not expressly confer upon the trial judge power to exclude from the jury any person whose name is found in the jury-box, and is drawn therefrom in the way prescribed, except as provided by sec. 2849. The causes for exclusion mentioned in that section are restricted to the relationship of the juror to either of the parties, to the fact that he has formed or expressed an opinion as to the merits of the case, or has some-bias or prejudice therein. Clearly this section does not cover the case of a person, whose name is placed upon the jury list, who is unable to speak or understand the English language, who is not a citizen and an elector, who is exempted from service as a juror for any cause, who is deaf, or so sick or infirm as to be unable to sit in the case, who is an idiot or insane, who is afflicted with a contagious or loathsome disease which would make it improper for him to associate with other men, and is drawn as a juror to try a cause in court. Still, it cannot be denied that the trial court must have the power to exclude such person from the jury. A construction of the law which would deprive the court of the power to purge the jury of such unfit persons would be monstrous. It has been frequently held that the causes of challenge enumerated in a statute are not exclusive of all others. It has been well said “ that the grounds of challenge for cause are so various that any attempt to collate them in a statutory provision must necessarily be only par
Admitting the power of the court to exclude a juror because of his want of knowledge of the English language, it follows that the power must be exercised in the discretion of the presiding judge, and it would require a clear case of the abuse of the power to call for the intervention of this court. Thompson and Merriam, in their work above cited, sec. 258, say: “The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty, nor will the action of the court in this behalf be made the subject of revision unless some violation of the law is involved, or the exercise of a gross or injurious discretion is shown.” A large number of cases are cited by the learned author to sustain this position, and there can be no doubt as to the soundness of the rule stated. The trial judge occupies a place of advantage, in determining questions of this kind, which renders it highly improper for this court to overrule the decision of such judge in setting aside a juror except where it clearly appears, as is said above, that there is some violation of law, or the exercise of a gross or injurious discretion is shown. See Thomp. & M. on Juries, § 252, and cases cited in notes. That there is no violation of law in setting aside a juror whose' name is drawn for the trial of a ca use, for other reasons than those set out in sec. 2819, is not disputed.
Sec. 2541, R. S., clearly implies that the court may excuse or discharge persons who are so drawn, notwithstanding they may be approved as indifferent between the parties. We are not prepared to say that it appears from the record that the trial judge in this case exercised any injurious or gross discretion in setting aside the four jurors named in the record. But, if the record disclosed a state of facts which
In the case of State v. Marshall, supra, Justice Obmuud says: “ Of all the discretionary powers of the court this would seem to be the least liable to abuse, as it is altogether conservative. Its exercise is confined to the exclusion of improper or unfit persons as jurors, and how this could prejudice the accused it is difficult to perceive. If in its exercise
The second ground of error alleged by the learned counsel for the appellant is that the two convict witnesses were-not competent witnesses for the plaintiff and that their testimony should have been rejected by the court. To sustain this objection the learned counsel for the appellant have made a vigorous attack upon the constitutionality of sec. 4073, E. S. 1878, which reads as follows: “A person who-has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction maybe proved to-affect his credibility, either by the record or by his own cross examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer.” The learned counsel for the appellant contend with great earnestness that this section is a violation of the provision of the constitution which secures a party to a civil action a trial by jury, and the other provision which vests in certain courts the judicial power of the state. Notwithstanding the ingenuity and earnestness of the argument, we are unable to comprehend how a stat
The moral character of a witness was never a test of his competency, although in England and in some of the states ■of the United States his religious belief was made a test. The thief, the robber, the ravisher, and the murderer, though eonAdcted of the crimes Avith which they were charged,, if not sentenced, as well as the felon who admitted his guilt, were at common law permitted to go upon the witness stand and give their testimony, while the man who was deficient in his religious beliefs, or who was interested in the action, Avas rejected as incompetent. It would seem, therefore, that a law Avhich abolished the test of religious belief or want of interest as a qualification of a witness, would be a much
The point made by the learned counsel for the appellant, that the law properly construed does not cover the case of a
By the Oourt.— The judgment of the circuit court is affirmed.