Palmer v. People , 4 Neb. 68 ( 1875 )

Maxwell, J.

The errors assigned in this case are as follows:

1. The court erred in allowing J. B. Baughn to sit as a juror.

2. The court erred in admitting certain testimony.

3. The court erred in excluding certain testimony.

4. The court erred in the instructions given to the jury.

5. The court erred in refusing certain instructions.

6. The court erred in not allowing the prisoner to argue his case to the jury.

7. The evidence is insufficient to sustain the verdict.

The bill of exceptions, states that J. B. Baughn, .one of the jurors, stated under oath, that he had an opinion and expressed an opinion, and was challenged for cause by the prisoner; and the said juror on being interrogated by the court, answered “that he thought he could render an impartial verdict upon the law and the evidence,” thereupon the court overruled the challenge, to which the prisoner, by his counsel, excepted.

The act approved February 27,1873, which was repealed by the criminal code taking effect Sept. 1, 1873, provided that “the formation or expression of an opinion or impression in reference to circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, shall not be sufficient ground of challenge for principal cause to any person, otherwise legally qualified, to serve as a juror, upon the trial of such action; provided the person proposed as a juror, who may have formed or expressed, or has such opinion or impression as aforesaid, shall declare on oath that he verily believes he can render an impartial verdict, according, to the evidence submitted to the jury, on such trial, and that such previously formed opinion or impression will not bias or influence his verdict; and provided the court shall be satisfied that the person so projDosed as a juror does not entertain such a present opinion as would influence his verdict as a juror.” General Statutes, 857. On the 4th day of March, 1873, an act to establish a criminal code was passed, taking effect September 1, 1873. It contained a provision repealing all. acts inconsistent therewith. Section 468 of this code provides that “it shall be good cause for any person called as a juror on the trial of any indictment, that he has formed or expressed an opinion as to the guilt or innocence of the accused; provided, that if a juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine on oath such juror, as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor or hearsay and not upon conversation with witnesses of the transaction, or reading reports of their testimony, or hearing them testify, and the juror shall say on oath, that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that such juror is impartial and will render sueliverdiet, may in its discretion admit such juror as competent to serve in such case.”

This act excludes all persons offered as jurors who have formed or expressed an opinion in reference to the guilt or innocence of the accused, unless such opinion has been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor or hearsay, and evidently applies to cases where the opinion is merely hypothetical, and excludes all cases where there is bias or a decided opinion. The juror, Baughn,. stated that “he had an opinion and expressed an opinion.” The word “opinion” in this connection is frequently used to denote a mere impression, and appears to have been so used in section 468 of the criminal code, above quoted. It is the right of a party accused of crime to be tried by a fair, unbiased jury, so that their minds may be open to those impressions, which the testimony and the law of the case ought to make; but it would be difficult in this age, to find an intelligent man that does not read the newspapers, and from their statements perhaps form an impression or opinion. Cooper v. The State, 16 Ohio State, 333. If the opinion is merely hypothetical, he is a competent juror; but if the juror shows the slightest bias, he ought to be rejected, notwithstanding he might be willing to swear that he feels able to render a fair and impartial verdict according to the law and the evidence. In this case there is nothing before us to show upon what the opinion of Baughn was based, or whether in fact it was more than a mere impression.

There is nothing in the bill of exceptions showing that plaintiff in error used any of his peremptory challenges. Under the code, a person charged with murder is entitled to sixteen peremptory challenges, against six on the part of the state. Certainly a party on trial .cannot complain that one of the jurors, sitting in the case was disqualified, he knowing the fact at the time of impaneling the jury, and waiving his right of peremptory challenge.

The next alleged error, that will be noticed, is that there is not sufficient evidence to sustain the verdict. The evidence is all embodied in the bill of exceptions. At common law, a new trial could not be granted in any case of treason or felony, but the practice in most of the states of the Union, has been to grant a new trial, in case of conviction, with consent of the prisoner, in any case where it is apparent that a fair and impartial trial has not been had. The code provides for granting a new trial on motion of the defendant, after conviction, ®n certain specified grounds, one of which is that the verdict' is not sustained by sufficient evidence; and it is the duty of the court, where the verdict is clearly without evidence to sustain it, to set it aside and grant a new trial. But if the evidence is conflicting, and the case has been fairly submitted to the jury, the verdict will not be disturbed. So much depends on the manner and appearance of a witness, while giving his testimony, that the question of his credibility must be left to the jury, and a reviewing court will not, in such a case, say from an examination of the testimony, that the verdict is erroneous. That the crime charged in this case was committed at the time and place charged in the indictment, we think is clearly shown, and there is testimony connecting the plaintiff in error with the commission of the offense, as strong as is often found in this class of cases.

The bill of exceptions shows that the counsel, both for the prisoner and the people, by agreement, submitted the case to the jury on the instructions of the court, and without argument. This they had a right to do, and having done so the prisoner’s counsel could not after-wards insist, as a matter of right, to have the jury recalled that they might argue their case.

Of the other errors assigned, after a careful examination, we find nothing of which the prisoner can complain. The evidence certainly would have warranted the jury in imposing a much more severe penalty"than has been done by their verdict. The judgment is therefore affirmed. ■

Judgment affirmed.

Chief Justice Lake, concurred. Gantt, J., before whom the case was tried in the court below, did not sit.