Roy v. State , 2 Kan. 405 ( 1864 )

By the Oov/rt,

Bailey, J.-

The defendant, Roy, was indícte'd at the September tend, 1-863, Of the District Court for Donophan County, for1 the murder of one Abner Ryan. At the December term Of the same Court, he was tried, and the jury found a Verdict of manslaughter in the third degree, and assessed' the punishment at three years confinement to hard labor.

Motions were made for a new trial, and -for arrest of judgment, which Were overruled by the Court, and1 judgment rendered upon the verdict.

The bill of exceptions presents for the consideration of this Court two questions, to-wit:

1. Did the Court err in holding ¥m. Kirby a competent juror \

2. Did the Court err in holding that the defendant could be found guilty of manslaughter ?

Section 184 of the code'provides, that “ It shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue of any material fact to be tried; but if it appear that such opinion is founded only on rumor, and not such as to prejudice Or bias the mind of the juror, he may be sworn.”

Kirby stated upon his vovr dvre that he had heard' of the ease, but had not formed or expressed cm opvtlion as to the guilt or innocence of the defendant; that he resided about six miles from where the alleged' killing was committed; and that shortly after the occurrence, one Mrs. Benjamin gave him a detailed statement of the facts of the killing, which made such an impression on his mind that he could at that time detail said statement—-three months after it took place.

If the statement of the juror is to be accepted as true, be bad neither formed nor expressed an opinion upon the issue in this case. The only circumstance tending to disqualify him from serving, seems to be, that he had listened to a statement of alleged facts in regard to the homicide, from a certain woman, and that he remembered that statement. Does it follow that he was prejudiced or biased by the statement, because he remembered it ? We cannot think so, in the face of his positive statement upon oath that he had formed no opinion. It does not appear that Mrs. Benjamin had any connection whatever with the transaction, and her statements to Kirby must, we think, be considered as mere “ rumor.”

If no person were to be deemed a competent juror who had listened to statements more or less detailed from a woman, or had read such statements in a newspaper, we apprehend that it might frequently result in a complete failure of justice, from the extreme difficulty of finding jurors. This Court can not hold as a matter of law that a person summoned as a juror is disqualified to sit as juror in a criminal case from the mere fact that he has listened to statements from his neighbors purporting to be a detail of the occurrence, which is all that appears in this case. Authorities on this point are too numerous to leave any doubt of the competency of the juror.

Was it competent for the jury, under an indictment for murder, to return a valid verdict for manslaughter in the third degree ?

Section 108 of the Code of Criminal Procedure provides that in all other cases, (see See. 107) the defendant may be found guilty of an offense, the commission of which is necessarily included in that with which he is charged in the indictment.

By our statute, murder in the first degree is wilful, deliberate and premeditated killing a Jiumcm being. Murder in the second degree is killing a human being purposely and maliciously, Avithout deliberation and premeditation. Manslaughter in the third degree, is defined to be the killing another in the heat of passion, without a design to effect death, by a dangerous weapon, &c. Crimes and Punishment Act, See. 13.

Manifestly the charge of murder would necessarily include the crime of manslaughter as-here defined;

The substantive offense in either case is the wrongful killing of a human being, and the- varying circumstances and concomitants attending the act determine whether the act amounts to murder in the first or second degree, or manslaughter in one of the four degrees defined by the statute.

• The indictment gives formal notice to the accused of the charge, against which he is required to defend himself, which in the case at bar was the killing of Abner Ryan, which act he is alleged to have done, unlawfully, wilfully, pui'posely and of his malice aforethought, by'assaulting him with a knife, and the jury under the instructions of the Court found him guilty of killing Ryan, in the. heat of passion, without a design to effect death, by a dangerous weapon, and that the killing was not justifiable.

The offense of Avhich the jury convicted him was clearly included in the indictment, and the verdict is well supported by it.

Appeal dismissed.

All the justices concurring.