7 Utah 26 | Utah | 1890
The defendant was indicted for unlawful cohabitation, and was tried and convicted. He moved for a new trial upon the ground, among others, of misconduct of the jury tending to prevent a fair and due consideration of the case, based upon affidavits showing that one John
.The only question to be determined is whether the •court erred in sustaining the motion for a new trial. In the case of People v. Reece, 3 Utah 72, 2 Pac. Rep. 61, it was held that where a juror falsely stated, upon examination under oath as to his qualifications as a juror, that he was a citizen of the United States, and neither of the defendants knew or had reason to believe until after verdict that he was not a citizen, the defendants could not be deemed to have waived their right to a jury of twelve men possessing the qualification of citizenship, and, being guilty of no negligence or want of watchfulness, were entitled to have the verdict set aside, and a new trial granted. In People v. Lewis, 4 Utah 42, 5 Pac. Rep. 543, the defendant was convicted of grand larceny. One of the trial jury which convicted him was a member of the grand jury which found the indictment
“Are you acquainted with the defendant, Walter Lewis,, here? Have any of you heard so much about his case-as to form or express an opinion, an unqualified opinion,, concerning his guilt or innocence? If any of you have,, make it known. I will not put questions directly to each of you.” The jurors were then asked if any of them-were related to the prosecuting witness, and if they had formed or expressed an opinion from anything they had heard him say, and he added: “You don’t seem to-answer, and I will not put the question to any of you particularly.” Ho statement of the facts constituting the-alleged ofEense was made to the jurors, and-hence, the court say, the jurors could not well have known whether they had an opinion as to the guilt or innocence of the defendant or not, and that, taking into consideration the timidity and apparent unwillingness of many jurors to-answer questions unless they are individually interrogated, it is not surpris'ng that there was no response to the-questions of defendant’s counsel. The court was of the-opinion that interrogating the jurors in such a general way was such negligence that the defendant could not,, after an unfavorable verdict, successfully move for a new trial, when, with the proper diligence, good ground for a challenge of the juror would have been discovered. The court said, however, that “an express unqualified*30 answer that the juror is a citizen, or that he has not formed or expressed an opinion as to the guilt or innocence of the accused, is sufficient to relieve the defense from further investigation unless there is something to ;put the party upon further inquiry." In the present case the defendant’s counsel asked the juror whether he had formed or expressed an opinion as to the guilt or innocence of the defendant, and he answered that he had not, and under the ruling in People v. Lewis, supra, the defendant was hot bound to pursue the investigation further. It is not shown that the juror Harris had formed or expressed an unqualified opinion as to the .guilt or innocence of the defendant further than the fact that he was one of the grand jury that found the indictment against him, and as to this fact he was not interrogated. The case of Rice v. State, 16 Ind. 298, was precisely like the one at bar in its facts. One of the trial jurors had been one of the grand jury which found the indictment. The juror was not- asked as to whether .he had been on the grand jury that found the indictment, but was asked whether he had formed or expressed an opinion as to the guilt or innocence of the accused, and answered that he had not. The fact that he had been on the grand jury was not discovered until after verdict, and, on a motion for a new trial, the affidavit of the juror was filed in support of the verdict to the effect that at the time of being examined he had no opinion as to the defendant’s guilt, and had forgotten the circumstance of his having been on the grand jury. The court held that the defendant was entitled to a new trial, .and was guilty of no negligence in not sooner discovering the fact of the juror’s incompetency, but that, if the fact had been known to the accused at the time the jury was accepted and sworn, he could not afterwards have .been heard to make the objection.