People v. Vermilyea

Curia, per Woodworth, J.

This case has been discussed by the counsel with great ability. The court has been ma terially aided by the researches they have made.

The Opinion which I expressed on allowing the certiorari, has been confirmed; as well by the arguments at the bar, as by my own investigation.

It was not denied by the counsel for the people, that if the challenge to Norwood was for principal cause, the proceedings in the court below became matter of record; and wfere liable to review in this court. I shall therefore not add anything to what I said upon the subject, on the former occasion.

The first question which I shall consider, will be, whethbr the forming or expressing by a juror of an opinion, that the party whom he is called to try, is guilty of the offence imputed to him by the indictment; such opinion being founded On the tearing Of all the testimony in a former trial Of the same indictment, constitutes a good cause of challenge ; and secondly, whether it is a principal cause, or merely one to the favor. ^[1]

It is admitted that every citizen, whether arraigned for crime or impleaded in a civil action, is entitled to a trial by a an<^ ™Par^a^ jury- The trial by jury is justly con s^ere<* an invaluable privilege; but it would become a mockery, if persons who had pre-judged the case were adxaittecl as impartial triors. All the elementary writers, with the exception of Ohitty, lay down the proposition broadly, that if a juror has declared his opinion beforehand, it is a good cause "of challenge. 1 Archbold, 181, 182; *2 Tidd. 779, 780; Bacon, title Juries, (E. 5;) Bull. N. P. 307; Hale’s Com. Law, 138. Lord Coke, (1 Co. on Littleton, 155, 6,) says, “ he ought to be least suspicious; that is, to be indifferent, as he stands unsworn, ánd then he is accounted in law, liber el legalis homo ; otherwise he may be challenged, and not suffered to be sworn.”

What is meant by a person standing indifferent ? Manifestly, that the mind is in a state of neutrality, as respects the person, and the matter-to be tried; that there exists no bias, for or against either party, in the mind of the juror, calculated to operate upon him; that he comes to the trial with a mind uncommitted, and prepared to weigh the evidence in impartial scales. It seems to me, that a juror in the situation of Mr. Norwood, so far from standing indifferent, had already condemned the defendants. He stated, that if the evidence on the second trial should be the same as on the first, he should pronounce them guilty.

It was well remarked by the defendants’ counsel, that unless the defendants produced some new and weighty evidence to change the preconceived opinion of the juror, their conviction was inevitable, so far as their conviction depended on him. We cannot presume that the evidence, on the part of the public, "would be less convincing than on the first trial; or that the defendants could adduce any important additional testimony. It will not be pretended that any of the jurors, who sat on the former trial, would be admissible as jurors on the second trial of the same indictment. I cannot discriminate between those jurors and Norwood. He had formed as decided an opinion on the merits' of the case, as any of them. That it is a valid exception to a juror, that he had previously given an opinion on the question in controversy, has been decided in this court, in the case of Blake v. Millspaugh, 1 John. 316, and Pringle v. Huse, 1 Cowen. 432.

It is a mistake to suppose that the case of Durell v. Mosher, 8 John, 445, overruled the decision of this court in Blake v. Millspaugh. I endeavored, on a former occasion, to show that the cases are perfectly consistent with each other. As far as my researches have extended, there *has been a uniformity of decision in all the courts of the several states of the union, and in the circuit court of the United States.

Chief Justice Swift, in his system, (2 vol. 232,) states the law of Connecticut, (and in this respect it is there understood to be the law of England,) that if a juror has published his opinion upon the particular case, it is a principal cause of challenge. In Massachusetts, if a juror is called, who was of the grand jury when the indictment was found, it has been held to render him not impartial, as a juror on the traverse of the indictment; and this without reference to any statutory provision.

The same doctrine was maintained by the constitutional court of South Carolina, (State v. Baldwin, 1 Con. Rep. S. C. 289, 301, 309, 321.)

I had occasion in my former opinion, to notice the decision of judge Iredell, on the motion for a new trial in the cause of Fries, and also, in my judgment, the conclusive arguments of chief justice Marshall, on the trial of Col. Burr. We have been referred to the impeachment of judge Chase, by the House of Eepresentatives of the United States. One of the articles against him was, for the admission of Basset, as a juror on the trial of Callender, under the alien and sedition law. Judge Chase, in his answer, admits the forming and expressing of an opinion on the merits of a case to be tried, disqualifies from serving as juror. He puts the admission of Basset, as a juror, upon the ground adopted by this court, in Durell v. Mosher, that a hypothetical opinion founded on mere rumor, does not disqualify. Since the trial of the indictment in this case, the trial of Merchant and Curtis took place in Massachusetts, before Mr. Justice Story; and every person who had formed or expressed an opinion of the guilt of the accused, was set aside. I apprehend that no adjudged case can be found, in any of the courts in this country, where a juror has been admitted who had formed a decided opinion on the merits of the case.

On the argument, thq case of The King v. Edmonds, (4 Barn. & Ald. 470,) was cited as an authority, that by *the common law of England, the expression of an opinion by a juror, of the defendant’s guilt, is not a cause of challenge, unless it be made in terms, or under circumstances denoting an ill intention towards the party challenging.

It was contended by the defendant’s counsel, that the opinion of the learned chief justice was extra-judicial, and also, that he had misquoted serjeant Hawkins, the authority principally relied on in support of the proposition. The charge calls for a critical examination.

Chief Justice Abbott, after citing Hawk. b. 2, ch. 42, s. 28, says, “the language of Mr. sergeant Hawkins, on this subject is, that if the juryman hath declared his opinion-beforehand, that the party is guilty, or will be hanged; yet if it should appear that the juror hath made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge.” And then the chief justice adds, “so that in the opinion of this learned writer, the declaration of a juryman will not be a good cause of challenge, unless it be made in terms, or under circumstances denoting an ill intention towards the party challenging.

The quotation from Hawkins is not correct; neither is the opinion imputed to him contained in the section.

The whole of the 28th section referred to by the chief justice, is thus: “It hath been adjudged a good cause of challenge on the part of the prisoner, that the juror hath a claim to the forfeiture, which shall be caused by the party’s attainder or conviction; or that he hath declared his opinion beforehand, that the party is guilty, or will be hanged, or the like; yet it hath been adjudged, that if it shall appear that the juror made such declaration, from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge.”

Sergeant Hawkins, or Mr. Leach, the editor of the last edition of his treatise,- refers for. support of the first division, to wit: “ that it is a good cause of challenge, that a juror has declared his opinion beforehand, and that the party is guilty, or will be hanged, or the like,” to the 21 H. 7 iykere it was decided, that it is a good cause of challenge, , - . to say that a juryman has reported, that it he be empanne^e(^ ^ wpQ pags for the plaintiff; and for the second pr0pOSition, “ that it- hath been adjudged, that if it shall appear that the juror made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge,” the reference in Hawkins, is to 7 H. 6, which contains justice Babington’s charge to the triors, in an action of replevin, maintaining the doctrine stated by sergeant Hawkins. Thus, it is manifest, he gave no opinion of his own, but merely collected the contradictory opinions upon that question. Of this, there can be no doubt on referring to the 33d section of the same book and chapter; where he observes, “ But these matters seeming to be unsettled, I shall leave them to be further considered by others’ evidently referring to all the antecedent conflicting opinions, and not intending to express any opinion himself. It appears, then, that the doctrine laid down by Babington, justice, in 7 H. 6, was overruled by the king’s bench in 21 H. 7. It is somewhat remarkable that the chief justice seems to have adopted the former, and rejected the latter decision.

In the course of chief justice Abbott’s opinion, he refers to Peter Cook’s case, (13 St. Trials, 334,) to prove that a juror himself is not to be interrogated, when the cause of challenge tends to his dishonor; and that it is a very dishonorable thing for a man to express ill will towards a person accused of a crime, in regard to the matter of his accusation.

I cannot accede to the proposition that a juror may not be questioned, whether he has formed or expressed an opinion. In the case before us, it is altogether improbable that Norwood, when he declared his opinon, had any idea of being called on as a juror. Having heard the trial, he could scarcely avoid forming an opinion; and it by no means affects his honor or integrity to avow it. I cannot account for the silence of chief justice Abbott, when com menting on Peter Cook’s trial, as regards the right of *interrogating a juror in ease of a challenge, in not noticing the decision of the court, on the right of challenging a juror for having declared his opinion beforehand. That trial took place at the Old Bailey, in 1696. Peter Cook was indicted for high treason. He thus addressed the court: “ My lord, before the jury is called, I am advised, that if any of the jury have said already that I am guilty, or they will find me guilty, or I shall suffer, or will be hanged, or the like, they are not fit and proper men to be of the jury.’’ To which the lord chief justice Treby replied, “You say right, sir; it is a good cause of challenge.” Justice Bokeby said, “ that will be a sufficient cause, if when they come to the book, you object and be ready to prove it.”

Justice Powell said, “in a civil case, it would be a good cause of challenge, if a man have given his opinion about the right, one way or other.”

Trehy, chief justice, further remarked, “ but if any man in this panel have any particular displeasure to the prisoner, or be unindifferent, or have declared himself so, I do admonish and desire him to discover so much in general; for it is not fit, nor for the honor of the king’s justice, that such a man should serve on the jury.”

Thus it appears, that on Peter Cook’s trial, the great difficulty was, whether the jurors should be examined, to prove what the judge thought impeached their honor; that they had pre-judged the prisoner. But on the point, whether the expression of an opinion by a juror, of the prisoner’s guilt, was a good cause of challenge, the judges expressed themselves as I have stated. I have not found a single adjudged case, since the case of Peter Cook, controverting the opinion there expressed.

Upon the reason of the thing, the authority of adjudged cases, and the general understanding of the bench and bar, I have no doubt that the law is not chargeable with such injustice, as to warrant the admission of a juror, who, from a knowledge of the facts, or information derived from those who knew the facts, shall have formed or expressed an opinion. I might proceed to illustrate my views by analogy, between the case at bar, and other cases, where the right of challenge has never been disputed; but I deem it unnecessary; and will only add, that the statutory provision, authorizing the challenge of a grand juror, who shall be called on the petit jury to try the same indictment, is clearly in affirmance of the common law; and proves that when a man has formed an opinion, even upon an ex parte hearing, it is a valid exception to. him; a fortiori, the objection is conclusive, if the juror has formed an opinion upon hearing the whole case. That the statute is in affirmance of the common law, is clearly established. In 2 Haw. ch. 43, s. 27, the author observes, “ it is expressly enacted by 25th Ed. 3, c. 3, which seems to have been made in affirmance of the common law, that no indictor shah be put in inquests, upon deliverance of the indictees of felonies or trespass, if he be challenged for that same cause, by him which is so indicted.” This exception against a juror has also been adjudged good, “ upon the trial of another indictment or action, wherein the same matter is either in question, or-happens to be material, though not directly in issue.” (Ibid.)

Reeve, in that part of his history of the English law which relates to the reign of Edward 3, (2 Reeve, 459, 460,) gives this account of that statute: “It had become one of the commonest challenges taken to a juror, that he was one of the indictors: but notwithstanding the old law .allowed this challenge, it is doubtful how far it was observed ; for we find a petition of the commons in 14 Edward 3, for a law to confirm it. This was at length done by statute, 25 Ed. 3.”

To remove all doubt that such was the common law, it is mentioned by Britton, (ch. 4, fol. 12,) who wrote in the reign of Edward 1, and whose treatise is said to have been dictated by that prince, the Justinian of England, that a defendant might challenge a juror, because he was one qf those-who .indicted him.; and there was a presumption that all who indicted him still bore the same ill will against him. Britton wrote many, years before the statute 25th Edward 3, was passed.

*From this review it seems to follow, that the ingredient of ill will, superadded to an opinion formed, never was en-grafted upon the common law in England. The doctrine rests on the charge of justice Babington to the triors, in „ „ ,h ,, , ;' , H. 6; and cannot be reconciled with the acknowledged right of the accused to challenge a grand juror, who, by the finding of the indictment, had expressed an opinion on the subject. I have not discovered that Lord Coke refers to the case from 7 H. 6. It is difficult to account for the omission, except on the ground, that it was not considered authority; but be that as it may, it is evidently irreconcilable with Lord Coke’s doctrine on the subject of challenge.

The wisdom of the law has always required that the jurors should come to the trial without prejudice or partiality, as respects either party. Can it be for a moment supposed, that a man who had formed such an opinion as ¡Norwood had, could stand indifferent or impartial ? As observed in my former opinion, all experience proves the difficulty of getting rid of opinions deliberately formed. I have constantly referred to the juror ¡Norwood, because the case was argued on the exception to him; but several of the other jurors were equally exceptionable.

The remaining question is, was the opinion expressed by ¡Norwood a ground of principal challenge ? The court below judged rightly in considering it made for principal cause. Such challenges are for causes which, in judgment of law, indicate bias, or which, if found true, are sufficient of themselves, without being submitted to the discretion of triors; or for causes which prove evident favor or enmity in the juror. Trials per Pais, 122, 128.

If I have not erred in what I have already said, the law does presume that the expression of an opinion on the merits of a case indicates bias, or that the mind of the juror is decidedly unfavorable to the defendants. It is then a principal cause of challenge. All the authorities I have cited prove this to be correct. When the law has declared the consequences of a fact, and the fact be established, it becomes the duty of the court to make the application. *Otherwise, different sets of triors might decide differently; and thus the law itself be perverted.

Upon mature consideration, and a patient review of all the authorities, it is the opinion of the court, that the doc-^a^ ¿own by chief justice Abbott, in relation to the right of challenge, was not the common law of England, on the 19th of April, 1775, and never has been considered as the law in this country.

We yield more readily to the convictions expressed, because they accord with that indulgent spirit, always professed by the law towards the accused, as to the conduct of the prosecution, and the manner of trial. Its progress has always kept pace with political liberty. From the reign of the 1st James to that of Queen Ann, during which time the English constitution underwent some of its most material improvements, it remained unsettled, whether an offender, charged with a capital felony, was entitled even to examine witnesses on oath in his favor. In the struggle between the crown and aristocracy on the one hand, and the commons on the other, this question was not lost sight of. In the reign of James, the right was for the first time' carried by the commons: but it was only to a limited extent, being confined to the three northern counties of England, and to felonies committed in Scotland, but appointed to be tried in those counties. In the 7th of William 8, witnesses were first allowed to prisoners on trials for certain treasons; and in the first year of Queen Ann, the right was extended to all cases of treason and felony. 4 Black. Com. 360.

. It was not till the 7th William 3, that counsel was allowed to the prisoner in cases of high treason; and, to this day, a man indicted for a capital felony is denied counsel on the question of guilty or not guilty before the jury. This last fact is a singular feature in the history of English jurisprudence; but I confess, little more so, than that the king’s bench, in the 19th century, should have denied that a juror having expressed a deliberate opinion against a prisoner, was a cause of challenge. It is not surprising, that for the support of such a principle, scarce any *thing more can be found, than a solitary case in the remote, and comparatively dark ages of the law. A review of American authorities on the same question, placing the security of the citizen, as we think they do, on higher and more certain ground; a ground which is fortified by constitutions or statutes, giving the aid of counsel on all questions, furnishes matter of comparison, decidedly favorable to the institutions of our country. We may, I think, assert without arrogance, that the right of trial by jury has been cultivated with better skill, taken deeper root, and promises to shed a more benign and salutary influence in this land of constitutional liberty, than in the country of its origin.

Motion to °^ge T®™se¿ dovm on the civil side, &c.

I have now examined all the questions deemed material in this case. My brethren on the bench concurring in the views I have taken, the consequence is, that a valid principal cause of challenge having been overruled in the court below, a new trial must be granted.

[1] An hypothetical opinion as to guilt does not disqualify a juror, but it is some evidence of bias, upon which triors in their discretion may set a juror aside. Freeman, v. The People, 4 Denio, 9.

That á juror has formed an unfavorable opinion of the accused, is not enough to exclude him from the panel, if he believes that he can true deliverance make according to the evidence. The People v. Lohman, 2 Barb. 216.

Upon trial of challenge for principal causé, for having formed and Expressed an oniriidn of guilt or innocence; the challenging party cannot ask the

juror whether ho has an impression as to defendant’s guilt or innocence; otherwise, when the challenge is for favor on the ground of bias. People v. Honeyman, 3 Denio, 121.

On challenge for favor on account of bias, the juror should not be set aside unless he has such settled opinions that he could not render verdict on the evidence alone; (The People v. Bodine, 1 Denio, 281, explained.) Ib.

The forming and expressing an opinion by a juror upon the guilt or innocence of a party on trial for a felony is a principal cause of challenge; the mere forming of an opinion is enough. The People v Rathbun, 21 Wen. 509.

If a juror have expressed an opinion against the party, though from his knowledge of the cause, and not from any favor or ill will, yet this is a principal cause for challenge. Ex parte Vermilyea, 6 Cow. 655.

So, it seems, if his opinion be grounded on the information of those who are acquainted with the facts. Otherwise, where this opinion is grounded on mere rumor. Ib.

On challenge for favor, any circumstance from which prejudice may justly 06 inferred, although weak in degree, is admissible evidence before the triors; on such challenge a fixed opinion of guilt need not be shown, though it may be necessary on a challenge for principal cause. People v. Bodine, 1 Denio, 281.

A juror challenged for favor testifies before the triors that he had formed no opinion as to the guilt, but had an impression that the general character of the prisoner was bad. The question whether he would disregard what he had heard and read, and render verdict according to evidence, was objected to; allowed; and exception taken: held, that the question must elicit from the juror the conclusion whether he was conscious of Ms ability to render a verdict according to the evidence, notwithstanding his impressions, and was therefore properly allowed. Lohman v. The People, 1 Com. 380.

If a jvror has said, that if the reports of the neighbors were correct, the defendant was wrong, and the plaintiff was right, it is not a sufficient objection to his being sworn and empannelled. Durell v. Mosher, 8 J. R. 445.

It is a good cause of challenge to a juror, that he has previously given his opinion on the question in controversy between the parties. Blake v. Millspaugh, 1 J. R. 316.

A challenge to a juror for principal cause was sustained where the juror had said that he believed the defendant was guilty, although he testified that he had no fixed opinion upon the subject of the defendant’s guilt; that he only entertained impressions derived from history and common reports, meaning thereby printed statements in papers, and reports in conversations; that he had never heard witnesses to the transaction testify nor say anything on the subject in question; if the evidence supported the circumstances he had heard, he had a fixed belief respecting the guilt of the defendant;, if these circumstances should be done away by evidence, he should not consider him guilty. The People v. Mather, 4 Wen. 22.

So a juror was held properly excluded, on a challenge to the favor, who testified that he had formed, though he had not expressed, an opinion that the defendant was guilty. His opinion was formed upon reports and what he had read. On the trial of a former challenge, he had heard a witness testify respecting the subject in question. His opinion was made up previous to hearing that testimony, but what the witnesses had stated had tended to strengthen his opinion. He had read reports of trials and affidavits or statements under oath relating to the same subject. His opinion was made up from reading them and other matters. And the charge of the judge to the triors in this case was approved, in which he instructed them that if they believed that the juror had a fixed opinion, which it would require testimony to remove, he was disqualified, whether that opinion was founded on rumor alone or on rumor and printed statements. Ib.

A juror who has formed an opinion of the guilt of the accused is not competent to serve; although he declares that if the circumstances on which his opinion is founded are not supported by proof, his opinion of the guilt of the accused will be removed. Ib.

There is no distinction as to the grounds of the opinion formed by the juror of the guilt of the accused; whether it be founded on being an eyewitness, or on hearing the testimony of those who were present at the transaction, or whether it be based on rumors, reports and newspaper publications; in either case it is good cause of challenge. Ib.

• The law attaches the disqualification to the fact of forming and expressing an opinion, and does not look beyond, to examine the occasion or weigh the evidence on which that opinion was founded. The People v. Marvin, 4 Wen. 229; Blake v. Millspaugh, 1 J. R. 316; Pringle v. Huse, 1 Cow. 432.

There is, however, a distinction between positive and hypothetical opinion. Durell v. Mosher, 8 J. R. 445.

Oh.' J. Spencer considered that if the opinions of jurors were formed on mere rumors and reports, such opinions did not disqualify them. The People v. Van Alstyne, 6 Cow. 565; Coleman, v. Hagerman, ib.

Mr. J. Woodworth remarked, that the principle on which these cases were decided was, that an opinion formed and expressed by a juror, is of itself evidence that he does not stand indifferent between the parties. The People v. Mather, 4 Wen. 229.

Mr. J. Marcy observes: “That too much stress ought not to have been ilaid on the juror’s declaration, that if the circumstances on which his opinion ■was founded should not be supported by the evidence, his opinion of the defendant's guilt would be removed. Ib.

See N. Y. Dig. vol. 3, tit. Challenging.