State v. McNaughtan

I dissent. I think the question put to one of the jurors as to whether or not he was indebted to the Uintah State Bank should have been allowed. It may not have appeared until later that one of the complaining witnesses, W.H. Siddoway, was the president of the bank, but the revealing of that very fact was prevented by the court's refusing to permit the juror to answer the question. If he had been allowed to answer it, it would have revealed that he was indebted to the bank and immediately counsel for the defense most probably would have asked him whether the fact that Wm. H. Siddoway was president of the creditor bank would influence him. Moreover, the question suggested that defendant was endeavoring to inform himself as to some fact on which he might desire to exercise a peremptory challenge. It is not to be presumed that counsel would ask a wholly immaterial question and the nature of the question would suggest where the inquiry was headed. Certainly, the questions which the court desires to ask on voir dire in a criminal action, or may permit the defendant and prosecution to ask, lie largely within the discretion of the court. But where it is quite apparent that the matter in regard to which a party desires to inquire is necessary or highly desirable for counsel to know in order to exercise peremptory challenges and such as would form a reasonable or intelligent ground for the exercising of such challenges, the court should make or permit the inquiry to be made.

In the case of Balle v. Smith, 81 Utah 179, 17 P.2d 224,230, it was stated:

"The object of an examination of a juror on his voir dire is to ascertain whether he has the statutory qualifications of a juror, and, having the statutory qualifications, whether there are grounds for a challenge for either actual or implied bias and to enable the party to exercise intelligently his peremptory challenges. State v. Morgan, 23 Utah 212, 64 P. 356;Pavilonis v. Valentine, 120 Ohio St. 154, 165 N.E. 730. We hold, therefore, following the great weight of authority and the better reasoning, that counsel for plaintiff is entitled to learn whether any juror is interested in or connected with any insurance or casualty company that may be interested in the case as insurer of defendant's liability."

If a party has the right to know whether any venireman is interested in an insurance company which is a virtual defendant in the case, by the same token a defendant in a criminal action should be permitted to inquire whether any of the persons are debtors of an institution in which a complaining witness holds a high office. If one who is sued for negligence held an office in a corporation, would not the plaintiff in such accident case have the right to determine whether any of the veniremen worked for such corporation? In effect, the prosecution's witness is a party to the action for the purpose of determining whether to exercise a peremptory challenge or one for cause.

I think the case should be reversed on another ground. While I agree that the shaking of hands by a complaining witness with the jurymen, nor perhaps the failure of a venireman to speak up when she knows she is indebted to the complaining witness and all around her the others have been asked about the debtor and creditor relationship, might not each in itself be a ground for reversal, yet when the aggregate effect of several of them put together may have resulted in an unfair trial, I think the case should be reversed. I do not mean that a number of erroneous but unprejudicial rulings may be added together to work a reversal when none in itself would do so, but when there are incidents of misconduct before the jury or rulings in constituting the jury which affect its personnel, none of which is itself important enough to be a ground for reversal, but which in the aggregate were likely to result in an unfair trial, I think the case may be reversed. I see a difference between matters which in a sense are insulated from the minds of the jury, such as rulings on technical questions of law, and a series of incidents which directly offset the type of fact finders which are selected or the cumulative effect of which might readily tend to incline the minds of the jurymen to one side or the other independently of the evidence. At bottom the jurors are judges of the fact. Those matters which go to the selection of such judges or which influence the minds of such judges — the psychological elements — when frequent or accumulative, may result in unfairness in the selection or functioning of these judges.

For these reasons I dissent.