State v. Ju Nun , 53 Or. 1 ( 1908 )

Opinion by

Mr. Chief Justice Bean.

1. The questions raised by the motion to set aside the warrant of arrest and to quash the information were all discussed and decided adversely to defendant’s position in State v. Guglielmo, 46 Or. 250 (79 Pac. 577: 80 Pac. 103: 69 L. R. A. 466); State v. Tucker, 36 Or. 291 (61 Pac. 894: 51 L. R. A. 246). The county court of each county is required to make up annually a jury list (Section 970 et seq., B. & C. Comp.) from which the jurors for the circuit court shall be drawn by the county clerk with the assistance of the sheriff or justice of the peace. Except in districts composed of no more than one county and having more than one judge of the circuit court, the assistance of the sheriff or justice of the peace shall be dispensed with, and the drawing shall take place in open court in the presence of one or more of the judges and under his or their directions. Section 978, B. & C. Comp. Multnomah County is the only county in the State constituting a judicial district and having more than one judge, and the contention for the defendant is that the law providing for the drawing of' jurors in open court applies to that county alone, and is therefore a special or local law “regulating the practice in courts of justice,” and for “summoning and impaneling jurors,” and void under Section -23, Article IV, Constitution of Oregon, which inhibits the legislature from passing special or local laws in certain enumerated cases, including those above stated.

2. The constitutionality of the act is sought to -be raised by an objection made on the trial to the individual jurors as their names were drawn from the jury box; and we do not think, it can be so raised. The objection is in effect a challenge to the panel and not to the poll, and such challenge has been abolished by statute. Section 117, B. & C. Comp; State v. Fitzhugh, 2 Or. 227; State v. Dale, 8 Or. 229; State v. Savage, 36 Or. 191 (60 Pac. 610: 61 Pac. 1128). At common law, challenges to jurors were of two kinds — to the array or panel, and to the poll.. A challenge to the array was grounded upon objections, which, if well taken, vitiated the whole panel or venire, and required its discharge. A challenge to the poll was an objection to a particular juror. As the entire office of. summoning the panel of jurors was at common law committed to the sheriff or other summoning officer, a right of challenge to the array on the ground of partiality or other disqualification of the officer was of the greatest importance to litigants; but in this country the statutes generally provide that the selection shall be made by some designated officer or officers from a previously prepared list. A right to . challenge the array is, therefore, of less importance than at common law, and consequently it has been absolutely abolished in some states (Baker v. State, 23 Miss. 243), and in others the statutes have prescribed the grounds upon which it can be made, and in such cases the challenge can be made only upon the grounds enumerated. State v. Bates, 25 Utah, 1 (69 Pac. 70); People v. Schmidt, 168 N. Y. 568 (61 N. E. 907); People v. Jackson, 111 N. Y. 362 (19 N. E. 54); People v. Welch, 49 Cal. 174; People v. Wallace, 101 Cal. 281 (35 Pac. 862).

3. Our statute not only abolishes the right to challenge the array or panel, but defines a challenge as “an objection to an individual juror,” and prescribes the grounds upon which it may be made. It is either peremptory or for cause. Section 119, B. & C. Comp. A peremptory challenge is an objection for which no reason need be given. Id. § 118. A challenge for cause is either that the juror is disqualified from serving in any action — that is, has been convicted of a felony, does not possess the qualifications prescribed by law for a juror, or is of unsound mind, etc. — or that he is disqualified from serving in the particular action on trial on account of implied or actual bias. Id. §§ 119-123, inclusive. These are the only challenges to a juror allowed under our procedure. It may be that, if persons were called or summoned as jurors wholly without color of law, an objection on that ground would be available to a litigant, for in such a case the persons so called or summoned would not be a jury either de facto or de jure; and this is probably what Mr. Justice Boise had reference to in State v. Dale, 8 Or. 229, when he said that the challenge in that case should have been made to the individual juror that he was improperly or illegally drawn or summoned. Where, however, the drawing and summoning is under color of law and semblance of legal authority, and the jurors are accepted and treated by the court as legal jurors, they are at least such de facto; and it is not open to a litigant to object to their serving in a particular case on the ground that the law under which they were drawn is unconstitutional. The Constitution of New York prohibited the enacting of local laws for the selection and drawing of grand jurors. In 1881 the legislature passed an act regulating the drawing of such a jury in the county of Albany. The court declared the act unconstitutional, but that no substantial right of the defendant was invaded by holding him to answer to an indictment returned by the grand jury drawn in pursuance thereof. The court said, the unconstitutionality of the law did not deprive the jury of the character of a grand jury in a constitutional sense; and, although selected in pursuance of a void law, it was selected under color of law and was a de facto jury. People v. Petrea, 92 N. Y. 128. And so in this case no constitutional or substantial right of the defendant was affected by the manner in which the jurors were drawn. The particular jurors were competent and qualified. This was sufficient.

4. It is next claimed that the court erred in the admission in evidence of the dying declarations of the deceased. He was shot through the lungs about 11 o’clock at night, and died the next afternoon. In the morning, after his removal to the hospital, he made a statement as to the cause and manner of his death; and it is the admission of this statement of which the defendant complains, on the ground that it did not appear that the deceased was under a sense of impending death at the time it was made. Before making the statement the attending physician had.pronounced his case hopeless, and he was informed of that fact by an interpreter and that, in the opinion of the physician, he could live but a few hours. The interpreter says:

“The doctor told me to tell him about his going to die soon. I told him. The first time he didn’t seem so full to realize it until the second time, and then the doctor said his case is very serious and there is no chance for him whatever. And I told him that again, and he became realized full about the fact. As far as I can remember about what he said — after I told him what the doctor said about his condition — then he said, I think it might be something like that, in those words, then he bowed his head that way [indicating], kind of shut his eyes and bowed his head to make peace, I think. That is as near as I can remember. He had such a sad feeling over him when . I told him what the doctor said. I saw his countenance much in such a deep sad feeling; and he shut his eyes and bowed his head. ‘Maybe, maybe,’ he repeated twice, I think. I suppose he intended to say something, but was too sad and could not say it. The Chinese, when they'are sick and believe they are going to die, they will not say for the bad luck of it. They won’t say that for anything. They are so superstitious about' it.”

This was, we think, a sufficient prima facie showing to entitle the statement to be admitted in evidence. State v. Fuller, 52 Or. 42 (96 Pac. 456); State v. Doris, 51 Or. 136 (94 Pac. 44).

5. The deceased was at the time dying from a gun shot wound, and knew that fact. He had been informed through the interpreter that in the opinion of the attending physician he could survive but a few hours; and from the testimony of the interpreter it appears that he realized and apprehended his condition and the imminence of death. It is true that he did not himself express a belief. in the near approach of death, but to render his statements competent as dying declarations it is not necessary that' he should have done so. His condition of mind was quite apparent from his conduct and the surrounding circumstances. State v. Fletcher, 24 Or. 295 (33 Pac. 575).

Judgment affirmed. Affirmed.