State v. Hoffman , 94 Mont. 573 ( 1933 )

I concur in the foregoing opinion.

The most difficult feature of this case is that which has to[5] do with the alleged misconduct of juror McLean. Upon hisvoir dire examination he testified that he resided eleven miles west of Collins, where he was engaged in farming. He said he had never seen the defendant before the day of trial and was not acquainted with any of the facts in the case; he had never discussed the case with any person or persons claiming to know the facts, and had no personal knowledge of them, nor were the facts discussed in his presence; he knew the deceased by sight only, and did not have any acquaintance with any member of deceased's family; he had not formed or expressed any opinion as to the guilt or innocence of the defendant and did not know of any reason why he could not sit as a trial juror in the case and try it fairly and impartially upon the facts adduced. Counsel for defendant asked this question, "Assuming, Mr. McLean, that the defendant submits testimony to the effect that he was insane by reason of being afflicted with an incurable disease, and that he was unable to distinguish by reason of such insanity between right and wrong, or that he was unable to determine between right and wrong by reason of being a confirmed and chronic alcoholic, drinking of alcoholic liquor for a long period of years to such an extent that it had virtually broken down his mental ability to distinguish between right and wrong, and that he was out of work and hungry at the time he committed the offense, and was prompted by an irresistible impulse to commit the offense, but he did not know what he was doing at that time, or could not know, and the court instructs you as to your duty under that evidence, would you consider such a defense?" to which McLean answered, "I could." He said that he did not have any prejudice against the defense of insanity, whatever its form, repeated that he did not know of anything which would disqualify him from acting as a fair and impartial juror, and said he was willing to assume the responsibility.

After the trial it was ascertained that, about two months before he became a juror, Mr. McLean, as the Premium Center correspondent of the "Choteau Acantha," had sent in news items to that paper, among which he reported the presence of a group of people from his neighborhood at a dance given in celebration of the recent wedding of Mr. and Mrs. Walker. Complimenting Mr. Walker upon his accomplishments and standing in the community, the writer said: "And when that can be said of a man, it can be said that he has used his talents wisely. * * * Contrasting to this picture of wisely used talents is the picture of the miserable wretch that murdered defenseless and helpless George Burrell. He buried his talents very deep. And when the wheels of justice cease to grind his worthless carcass will lie to rot as deeply buried as was his talent." Further on in his column he said: "Did you notice how quickly our legal officers placed their hands upon the murderer? That is the result of a sixth sense that comes from long experience."

Counsel for defendant insists that the author of the article could not have been a fair and impartial juror, and a new trial should be accorded to the defendant. If a juror has a fixed opinion as to the guilt of the accused which he conceals from the court on his voir dire, on the discovery of the fact after conviction a new trial should be granted upon the ground of the juror's misconduct (State v. Mott, 29 Mont. 292, 74 P. 728,733; Territory v. Kennedy, 3 Mont. 520), "but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him." (Sec. 11962, Rev. Codes, 1921; State v. Juhrey, 61 Mont. 413,202 P. 762, and cases cited.)

Upon the hearing of the motion, McLean admitted that he wrote the article; he testified that he had been for a number of years an intermittent correspondent of the "Acantha." On the Friday before he wrote the article he was in Collins delivering wheat, and was informed by one Lockhart that George Burrell had been murdered. Lockhart did not know who had killed Burrell, nor did McLean when he wrote the article. He wrote it upon the information furnished by Lockhart. He had not read any account of the death of Burrell before he wrote it. At the dance in Fairfield he heard different ones stating that a man suspected of the murder had been taken to Great Falls, but the name of the suspect was not given. When writing, he had in mind nothing more than illustrating what Mr. Walker had achieved, and what another man had done with his opportunities by committing a murder. He imagined the picture of a man "who would commit a murder of a man like George Burrell, any man that would commit a murder." When he wrote the paragraph calling attention to the speedy apprehension of the "murderer," his chief reference was to the legal talent which apprehended the man, but he did not know the man. All the questions propounded to him upon his voir dire examination were read to him, together with his answers, and he swore that each answer given by him was true and correct, "absolutely," he said.

At first blush it would seem that the defendant could not have had a fair trial before the author of the startling article. But, upon an analysis of the surrounding facts, the impression does not persist. Murder is the unlawful killing of a human being with malice aforethought; that which is committed in the perpetration of robbery is of the first degree and warrants the death penalty. If a talesman has conscientious scruples against the infliction of the death penalty, he must not be permitted to serve as a juror. (Sec. 11960, Rev. Codes, 1921.) All persons are presumed to be of sound mind until the contrary appears. The burden of showing the contrary is upon him who asserts it. (Sec. 10728, Id., as amended by Laws of 1925, Chap. 87, p. 115.) Perhaps it may be said that the natural inclination of a law-abiding citizen who is competent to serve as a juror in a case where murder of the first degree is charged (that is, one who has no conscientious scruples against the infliction of the death penalty), upon learning that a citizen has been brutally slain in the perpetration of a robbery, is that the slayer should suffer the extreme penalty.

The surrounding facts considered, McLean in his article merely expressed in florid style his abhorrence of a brutal murder. It was murder of the first degree if done by a sane man. It is most unlikely that the question of the slayer's sanity, when the article was written, two months before the trial, had ever occurred to McLean. It is not reasonable to presume that that contingency was in his mind when in preparing the article he likened the exemplary young man, recently married, to the good servant who improved his talents, pointing to the contrast presented by the "miserable wretch" who had killed Burrell, likening him to the slothful servant who buried his talent. (St. Matthew, xxiv, 14, 30.)

The defendant confessed the killing. In the circumstances, if he were sane, it was murder in the first degree. There could be no defense but insanity. Upon this defense McLean was interrogated upon his voir dire and gave answers satisfactory to defendant. No reason appears to doubt that he was a fair and impartial juror upon that issue. (State v. Howard, 30 Mont. 518,77 P. 50; compare Keffer v. State, 12 Wyo. 49,73 P. 556; State v. Hoagland, 39 Idaho, 405, 228 P. 314; State v. Gould, 40 Kan. 258, 19 P. 739.) No importance should be attributed to the use of the word "murderer" in the paragraph wherein the officers are complimented for their speedy work. The careless use of the word is well known. In ordinary parlance, when one man is killed by another, the slain is said to have been "murdered," and the slayer is referred to as his "murderer." (See State v. Morrison, 67 Kan. 144,72 P. 554.) The reference to the "murderer" was impersonal, indefinite, for McLean did not know who he was. It was only because defendant proved to be the "murderer" that the reference applied to him.

The trial judge who, we must assume, presided with judicial poise, being actuated at all times by a desire to protect the rights of the defendant, heard McLean testify upon his voirdire examination touching his competency to serve as a juror, observed his demeanor throughout the trial of the case, heard him testify upon the motion for a new trial, and was doubtless convinced of the sincerity and truth of his statements. Otherwise the court would not have overruled the motion for a new trial. (Territory v. Burgess, 8 Mont. 57, 19 P. 558, 1 L.R.A. 808;State v. Anderson, 14 Mont. 541, 37 P. 1; State v.Mott, supra.)

If McLean told the truth upon his voir dire and when he testified upon the motion for a new trial, he was a qualified juror. While it is imperative that the accused shall have a trial by an impartial jury, the mere probability that one of the jurors is incompetent is not sufficient to overthrow the verdict. A bare fear respecting the true state of the juror's mind has no place here. Error will not be presumed; after verdict, the defendant has the laboring oar.

"In passing on a motion for a new trial based upon the alleged incompetency of a juror, the lower court is called upon to exercise a sound legal discretion. In the absence of a clear showing of error in this regard, the appellate court will not interfere. (Territory v. Bryson [9 Mont. 32, 22 P. 147], supra; State v. Anderson, supra; State v. Martin [29 Mont. 273, 74 P. 725], supra.)" (State v. Mott, supra;State v. Ingersoll, 88 Mont. 126, 292 P. 250.)

We are convinced that the defendant had a fair and impartial trial. The evidence introduced to prove his insanity was indeed weak. It is hard to conceive that any level-headed jury would be impressed with it.

Murder in the commission of robbery was done. In the facts there is no extenuating circumstance; the circumstances each and all show the defendant planned and executed the crime with an abandoned and malignant heart fatally bent on mischief. No injustice has been done by the verdict. The order denying the motion for a new trial and the judgment are affirmed.

ASSOCIATE JUSTICES MATTHEWS and ANDERSON: We concur in both of the foregoing opinions.