The learned counsel for appellant have assigned several causes of error, upon which they ask a reversal of the judgment rendered in the Court below, but only urge especially two of them, the first and most important of which is placed under the head of " error in refusing defendant's motion to set aside the verdict, and grant him a new trial."
Various reasons are attempted to be given why this motion should have been granted; some of which, at first blush, would strike one as tenable, but on examination, lose all force.
In their division of causes under this head, the first which is presented is as follows:
" The verdict is not the result of a fair expression ofopinion on the part of all the jurors."
Upon examination, it will be found that this objection is intended to apply exclusively to the supposed incompetency of certain jurors, who, it is said, had formed or expressed opinions against the appellant prior to being called as jurors, but on examination upon their " voir dire ," disavowed such opinion, etc., the appellant, it is said, being unaware of the opinions of said jurors, until after verdict.
In answer, I submit that this is not a ground for new trial.
The statute (Wood's Digest, p. 304, Art. 1679,) declares that " the Court has power to grant a new trial in the following cases only," and then follows the enumeration of the cases, to none of which this belongs; to bring it within either of the enumerated causes, would be unwarrantable distortion of the English language.
It may be the practice elsewhere (and should be so here) to grant new trials upon this ground, but it cannot so be in our Courts, because the statute expressly forbids it, and it is not the province of this Court (so long as we have wise Legislatures) to make the law.
It must pronounce the law as it may find it, however great the hardships, leaving the evil to be corrected by some other department of the government.
I make this objection for the purpose of having the practice established, more than for its effect upon this case, for I do not believe that the facts, when understood, warrant any interference with the judgment.
I am willing to admit, that if such would in any case be good cause for new trial, and if the evidence warranted the conclusion that the jurors Getchel and Denny deliberately uttered the expressions imputed to them by appellant's counsel in their brief, then under the law a new trial should be granted in this case.
But I cannot agree with the learned counsel in their conclusions of fact, and it occurs to me that if they had read Graham & Waterman less, and the evidence more, they might have saved much laborious writing.
A proper analysis of the testimony upon this point is necessary, before an examination of the law is had, and I therefore call attention to such portions of it as legitimately affect the question. And first, in reference to the juror Getchel, we find the ex parte evidence or affidavit of the witness Pulse, in which he says that Getchel declared that " the peopleought to take Henry Plummer out of jail and hang him; " afterwards this Pulse was brought before the Court, when an opportunity was had for cross-examination, and his statement differs materially from the affidavit made by him. It seems, also, that he is asked as to the sentiments he entertains towards the juror Getchel, whom he is attempting to brand as an unprincipled perjurer, and answers that he entertains towards him no enmity; he also states that a number of persons were present and heard Getchel's remarks.
In answer, Mr. Getchel testifies that this statement by Pulse is " unqualifiedly false," and that Pulse is at enmity with him. Avery speaks of the ill-will between Pulse and Getchell, and says that Getchell stands as high as any man in his neighborhood.
All the facts and circumstances taken together, must satisfy this Court that the affidavit of Pulse does not contain the true facts. If true, it is a little singular that no other witness is brought to sustain him, when he says that a number were present at the remarks.
Calvin Hall, in his affidavit, testifies to a similar statement made by Getchel to that which Pulse swears to; in his testimony before the Courtwe find it different, and it is a little remarkable that he and Pulse both place in Getchel's mouth the same language, at different times and places; one has him before the Miner's Hotel, the other near Culver's store.
Getchel also says that Hall's statement in his affidavit is false, and that Hall is at enmity with him. Avery says that Hall was at enmity with G., and told him (Avery) that he had never heard G. express any unqualified or decided opinion in regard to the case. I might repeat here, as applicable, remarks made in reference to the attacks upon Getchel by Pulse, and leave the juror in the hands of the Court.
In regard to the juror Denny, the first affidavit charges him with saying in a saloon, that " Plummer ought to be hung," afterwards, upon being examined before the Court, he says that he (witness) remarked that a man who could take another man's wife away, and then shoot him down like a dog, ought to be hung," and Denny agreed with him. This is widely different from his affidavit, and he says that Dixon, among others, was present.
Dixon says that he did not hear any such language, and Denny flatly contradicts him.
Comment in reference to Southwick'stestimony is unnecessary.
The answers of the jurors in their affidavits would have been sufficient, without other testimony. (Graham & Waterman on New Trials, 413, 414, 415.)
It may be possible that the jurors uttered, in the presence of the witnesses, some loose expressions in reprobation of the conduct of Plummer, or his attack upon the deceased, which they magnified into the statements contained in their affidavits. But such expressions, when satisfactorily shown to have been made, would not warrant a new trial. (Graham & Waterman, 417.)
JUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Burnett, J., concurring.
OPINION
TERRY, Judge
The defendant was convicted, before the District Court of Nevada county, of the crime of murder in the second degree, and his application for a new trial having been denied, appeals to this Court.
There are several objections taken to the legality of the mode of empanneling the Grand Jury, as well as to the refusal of the Court to permit certain questions to be asked of individual jurors, which we do not think well taken, nor do we think it is necessary to examine these questions separately or at length, as they involve no principle not already passed upon.
There was no error in postponing the consideration of the application for a change of venue until an attempt was made to empannel a jury, and as the counsel, after a number of persons had been rejected, declined on the intimation of the Court, to renew his motion, he cannot take advantage of the failure to order a change of venue.
In support of his motion for a new trial, defendant offered evidence to show that certain jurors, who acted in the trial of the cause, were incompetent from actual bias.
And the question is presented, whether an objection to the competency of a juror can be taken after verdict. On this point we have no doubt.
One of the dearest rights guaranteed by our free Constitution, is that of trial by jury; the right which every citizen has to demand, that all offenses charged against him shall be submitted to a tribunal composed of honest and unprejudiced men, who will do equal and exact justice between the government and the accused, and in order to do this, weigh impartially every fact disclosed by the evidence. This guaranty, long regarded as of inestimable value, would be entirely worthless if persons are admitted in the jury-box who are influenced by passion, ill-will or prejudice, or who, by reason of having formed an opinion as to the merits of the case, will be incapable of deciding with perfect impartiality.
In Rollins v. Adams, (2 N.H. 349,) Judge Woodbury remarked: " It is highly important that the conflicting rights of individuals should be adjusted by jurors as impartial as the lot of humanity will admit; that their minds should be as free as the unsunned snow from any previous impressions, and should receive no hue but what the law and the evidence at the trial may impart." If this be true of cases between individuals, involving questions of property, with how much greater force does it apply to cases involving the life or liberty of a citizen? In McLain v. The State, (10 Yerg. 241,) the Court said: " The trial by jury has always, in England and in this country, been considered of such vital importance to the security of the life, liberty and property of the citizen, that great care has been taken to preserve it unimpaired. That the accused may have the full benefit of a judgment by his peers, it is absolutely necessary
" First, that the minds of the jurors should not have prejudiced his case; second, that no impression should be made to operate on them, except what is derived from the testimony given in Court; and third, that they should continue impartial.
" A trial before a prejudiced jury, or one composed of men who had already prejudged the case, is a mere mockery of justice.
" It is intended that jurors, before acting as such, shall know nothing of the matter in difference, or of the parties; that their minds shall not be preoccupied, but they shall be prepared to receive and to weigh such proofs as may be submitted to them. Unless they do this, it would be better for them to retire and deliberate upon their verdict as soon as they are empanneled, and thus save time, labor and much expense, as well as spare themselves the hypocrisy of pretending to decide according to law and evidence. The very meaning of the word trial, which is an 'examination by a test,' shows that the triers are to act not upon previously formed opinions, but upon inquiry, first instituted and carried on before them. Moreover, if each juror forms his opinion before taking his seat, the case is, in reality, predetermined by persons who, at the time of making their decision, are not jurors. So that the wholesome restraint of the oath administered to the jurors--the solemn proceedings of the Court--the opportunity to observe the demeanor of the witnesses--the thorough public sifting and scrutiny of the evidence--the explanations of counsel--the instructions of the Judge, and the deliberations of the jury, enlightened by private discussion after they have retired--are so many useless forms, and the parties have only the appearance of jury trial, without any of its benefits." (2 G. & W 374, on New Trials.)
Objections to the competence of a juror are not cured by verdict. " Whatever would be a good ground for a challenge to a juror, if discovered in time, will be cause for granting a new trial, if not discovered till the jury have retired to consider their verdict." (Hardin, 167; 5 Geo. 142.)
" In The State v. Hopkins (1 Bay, 373), an affidavit was produced that the foreman of the jury had, on the morning of, and before the trial, said that he had come from home to hang every damned counterfeiting rascal, and that he was determined to hang the prisoner at all events. This, it was contended, was such an improper piece of conduct on the part of the foreman, as was sufficient to vitiate any verdict, much more so where the life of a citizen was concerned. The Court were of the opinion that the objection was a good ground for a new trial; and that it would be difficult to say that it was not so, even if the witness was of a suspicious character. At all events, it is a doubtful point, in which case, it was the duty of the Court to lean on the merciful side, and give the prisoner another chance for a fair trial."
In Busick v. The State (19 Ohio, 198), on motion for a new trial, it was shown that one of the jurors who acted on the trial of the case had, before the trial, declared in conversation with one of the grand jury who found the indictment, " if George Busick is not hung, there is no use of law." The Supreme Court held this a sufficient ground for a new trial.
In Monroe v. The State of Georgia, a new trial was granted, on the ground that one of the jurors had declared before trial that " from what he knew he would stretch the prisoner."
Lumpkin, J., delivering the opinion of the Supreme Court, said: " The law requires that jurors should be omni exceptione majores, not liable to an objection on account of malice, ill-will, revenge, prejudgment, or the like. If they are under any of these influences, they are certainly improper jurors to try a citizen for his life. * * * Prisoners have rights, and there are certain legal safeguards which must be preserved immaculate; the purity of the stream of justice is involved in it. One of these safeguards is that the jury shall be impartial and unbiased, their minds free from prejudgment. I must say that he who gets his consent to serve on a jury, when he must know that his mind is utterly disqualified from doing justice between the prisoner and the State, is guilty of gross misconduct. To convict one under such circumstances, is to perpetrate an offense little short of murder itself."
In the case of Sellers v. People (3 Scam. 412), one of the jurors, before the trial, had said " that the prisoner would, and ought to be hung," " that nothing could save him, that salt could not save him, and that there was no law to clear him," but afterwards he went to jail and told the prisoner " that he ought not to be hung, and if he were on the jury he should not be hung." " When sworn on his voir dire, stated that he had formed or expressed no opinion." The Supreme Court of Illinois on these facts granted a new trial. Judge Douglas, in delivering the opinion, said: " It would be difficult for any one, in the fullness and freshness of our language, to select or invent forms of expression which would more clearly and emphatically convey a firm conviction of guilt, and at the same time preclude all hope or possibility of escape on the part of the prisoner. They furnish a strong case, and bring it fully within the authorities cited, and hence establish the incompetency of the juror. Can it be insisted that the juror was impartial; that he possessed that moral perception, that sense of justice, that integrity of character which would qualify him to pass upon the life of a fellow-citizen? It presents the revolting spectacle of deepseated malice, concealed under the sacred garb of friendship, destroying its victim by adding treachery to perjury. It is wholly immaterial for the purposes of this motion, whether the prisoner be guilty or innocent; law, justice, humanity, forbid that he should be deprived of his life by such means, and by a jury thus constituted."
In the case under consideration, it appears that George L. Getchel and J. G. Denny, who acted as jurors on the trial of the defendant, had, on being examined on their voir dire, answered satisfactorily, and were accepted as jurors.
After verdict, defendant introduced the affidavits of Pulse and Hall, as to the declarations of Getchel, and the affidavit of S. Southwick as to the declarations of Denny, made before trial. The affidavit of Pulse stated that Getchel, soon after the killing with which defendant was charged, declared that " the people ought to take Plummer out of jail and hang him," and on other occasions expressed a belief that he was guilty of murder.
In addition to the affidavits, witnesses were examined both by the accused and the prosecution, as to the facts alleged. The testimony of the witnesses corroborate the statement in the affidavits, and we think, clearly establish that such a declaration was made by the juror. In the testimony there is but little conflict. Avery, a witness for the prosecution, and an intimate friend of Getchel, states that he was present at the time alluded to, and that he thinks Getchel said that Plummer ought to be hung; there were several present during the conversation, all of whom appeared to think Plummer ought to be hung; and though not certain, he thinks the remark was made by Getchel.
Getchel files an affidavit, denying the facts stated in the affidavits, but we think this affidavit not sufficient to overthrow the testimony of three witnesses, one of whom was called by the prosecution, and was the intimate friend of the juror. Indeed, it would seem that his affidavit is entitled to no more weight that his solemn declaration on his voir dire .
In regard to Denny, the affidavit of Southwick is corroborated by the evidence of R. Smith and Alex. Fraser, and controverted only by the affidavit of the juror.
The remark of Denny, as stated by Southwick, was that " Plummer ought to be hung, and if he was at the Bay he would be hung before night." Smith and Fraser both testify to hearing him say that Plummer ought to be hung.
This conscientious juror does not seem to have troubled himself to inquire whether the defendant was guilty or not; with him, it appears that the accusation was sufficient; in the language of witness Smith, " he appeared to be down on all men situated as Plummer was."
It is clear that neither of these jurors was competent to sit upon the trial of defendant, if, indeed, they were competent to sit in any case involving the life or liberty of a citizen.
A man who could so far forget his duty as a citizen, and his allegiance to the Constitution, as to openly advocate taking the life of a citizen without the form of law, and deprive him of the chance of a jury trial, would not be likely to stop at any means to secure, under the forms of a legal trial, a result which he had publicly declared ought to be accomplished by an open violation of the law.
Judgment reversed, and a new trial ordered.