9 Cal. 298, People v. Plummer

CourtUnited States State Supreme Court (California)
Writing for the CourtTERRY, Judge
JudgeJUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Burnett, J., concurring.
Citation9 Cal. 298
Date01 April 1858
Docket Number.

Page 298

9 Cal. 298




Supreme Court of California

April, 1858

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Appeal from the District Court of the Fourteenth Judicial District, County of Nevada.

The defendant was indicted and convicted of the crime of murder, in the second degree. After the defendant was arraigned and plead, his counsel moved the Court for a change of venue. This motion was based on the ground that a fair and impartial trial could not be had in the county, owing to the prejudice and feeling existing against the defendant, and was supported by a number of affidavits. The motion was argued, and taken under advisement by the Court. The Court then adjourned until the next day. On the opening of the Court the next day, an order was made overruling the motion for a change of venue " until such time as an effort shall have been made to empannel a jury, with leave of defendant's counsel to renew the motion if it shall then appear that an impartial jury cannot be found." One hundred persons were examined as jurors, and only seven were found qualified to serve. The Court thereupon asked the counsel for the defendant if they wished to renew the motion for a change of venue, to which they replied in the negative. Other persons were summoned, and subsequently a jury was obtained.

Thedefendant, after the verdict of the jury, moved the Court for a new trial, and on such motion produced, and read in evidence, certain affidavits, together with the testimony of a number of witnesses, showing that two of the jurors had formed and expressed an opinion against the defendant previous to the trial. One of the jurors had said, in the presence of a number of persons, and in a public place, that " the people of Nevada ought to take Henry Plummer out of jail and hang him." Another of the jurors said " that Plummer ought to be hung, and that if he was at the Bay he would be hung before night." Another witness heard this same juror (Denny) say, at a different time and place, " if Plummer got his dues, they would hang him." Witness testified that the juror Denny, " seemed down on all men who were situated as Plummer." The Court below refused to grant a new trial, and the defendant appealed to this Court.


McConnell & Niles, for Appellant.

The Court ought to have awarded a new trial upon defendant's motion.

The grounds upon which we predicate our claim to a new trial may all be reduced to three heads, viz:

1. Theverdict is not the result of a fair expression of opinion on the part of all the jurors.

2. It is contrary to the law and the evidence.

3. The Court erred in matters of law to the prejudice of the defendant.

Upon referring to the section of our criminal practice in regard to new trials the Court will observe that certain grounds are specified upon which a new trial may be granted. (See Sec. 440 Crim. Pr. Act, Wood's Dig. p. 304.)

We were in some doubt at first, whether our objection to the jurors Getchel, Denny, and Jameison, came within any of the grounds there mentioned. But upon reflecting that the only mode by which we could avail ourselves of the objection, was by motion for a new trial--and that such was the universal practice elsewhere, we became convinced that though not distinctly expressed by the statute as an independent ground for a new trial--still it was by a fair construction of the law included within those grounds which are expressed.

The three jurors mentioned above, (Getchel, Denny, and Jameison,) at the time of the empannelment of the jury, each qualified himself by swearing that he had not formed or expressed an opinion as to the guiltor innocence of the defendant, and that he had no bias against him.

After the trial, however, it became known that each of them had not only formed but expressed a most decided opinion that the defendant was guilty of the crime with which he stood charged.

Having incorporated this as one of our grounds for a new trial, we filed affidavits to substantiate the fact.

In regard to the juror Getchel, we introduced the affidavits of Wm. F. Pulse and of Calvin Hall.

In regard to Denny, we introduced the affidavits of S.E. Southwick.

In regard to Jameison, the affidavit of F. M. Worsham.

Two of the accused jurors, (Getchel and Denny,) made affidavits denying the statements contained in the affidavits presented on the part of the defendant. These affidavits, together with one from the defendant himself, denying his previous knowledge of the sentiments of the three jurors, are incoporated in the statement for a new trial.

But witnesses were also called to the same matters, and their evidence reduced to writing, was also adopted, and now forms part of the statement.

These witnesses were Pulse, John Avery, S.E. Southwick, Robert Smith, E. C. Dixon, and Alexander Frazier.

The evidence of these different persons is very distinct and pointed.

Pulse and Hall swear most positively--in affidavits, and as witnesses--that the juror Getchel had expressed a most decided and unqualified opinion of the guilt of the defendant. According to their evidence, this just-minded juror and humane man had publicly avowed the opinion that " the people of Nevada ought to take Henry Plummer out of jail and hang him."

His friend Avery, in his oral testimony, admits that he made use of the same, or very similar expressions.

It is true, Getchel himself denies that he made such statements--but his affidavit is entitled to no greater respect than his answers to defendant's counsel, when examined by them as to his competency to serve as a juror. He then swore that he had neither formed nor expressed an opinion as to the guilt or innocence of defendant, and his affidavit is a simple rehash of the same statement.

We prove the charge against him by three witnesses: Pulse, Hall, and Avery. Had there been but one, there might have been a pretext for saying, that as there was merely the oath of one man against the oath of another, the presumptionwould be in favor of the juror's competency. But even in that case, we think the law in favorum vitoe would believe the witness, and disregard the declaration of the juror.

But here there were more witnesses than would be necessary by law to convict the juror of perjury, had he been indicted for that crime. Surely then, there were enough in a case where a human life was in actual jeopardy, to convince the Court of the truth of the charge imputed to the juror. In all of the cases to which we shall refer the Court, it will be found that the Court disregarded the oath of the impeached juror.

The juror Denny stated publicly, that " Henry Plummer," (the defendant,) " ought to be hung." And on another occasion--the day after the difficulty--he remarked that " Plummer ought to be hung, and that if he was at the Bay he would be hung before night."

This man appears to have resided in San Francisco during a period of its history which every honest citizen ought to blush to think of--and to have imbibed, in that hot-bed of treason and lawless violence, all the bitter prejudice against a man accused of crime which at that time prevailed there, together with an ardent admirationfor their new summary modes of procedure and punishment. Such men as he and Getchel ought not to live in a free and civilized country--much less to sit in judgment upon the lives and liberties of its citizens. With such men, to accuse, is to convict--and no evidence, however forcible, if it tended to the benefit of the prisoner, would be regarded.

As regards the competency of Jameison, we produced but a single affidavit--but we think we may leave this juror entirely out of the argument, and rely alone upon our proofs respecting Getchel and Denny.

The substance of the declarations imputed to both jurors is that Henry Plummer ought to be hung for the act with which he stands charged.

It is true, this is not in terms an expression of an opinion of his guilt. But surely it embodies within itself such an expression of opinion. For if a man ought to be hanged for an act, it follows that he is guilty of such an act. A different construction of their language would place these jurors in the singular and unenviable position of believing and hoping that a man might be hanged, against whom no crime could be shown; in which case it would be regarded as an evidence of maliceagainst the defendant. But whether regarded as the expression of a settled opinion upon the merits of the case, or as an effusion of hatred and ill-will towards the defendant, it would, as we shall show, be equally a good ground for setting aside the verdict, and awarding a new trial.

The expressions used by the jurors, may, with propriety, be referred to two different heads, viz:

1. Of bias or prejudice against the defendant personally, amounting to ill-will; and,

2. A settled preconceived opinion as to the merits of the case.

The expressions attributed to the jurors are precisely such as we would expect from a man who stood to the defendant in the attitude of a deadly foe, and who, in the climax of his hatred, is willing and anxious to see him sacrificed by means of a judicial murder, or a mob-law murder, without the slightest regard to the question of his guilt or innocence.

The law permits no such malicious sentiments to fill the breasts of those to whose discretion the lives of our people are confided.

In the case of The State v. Hopkins (1 Bay's R. 372), the foreman of the jury had said that he " came from home to hang every damned counterfeitingrascal," and that he " was determined to hang the prisoner, at all events." This was held to be a sufficient ground for a new trial.

Graham & Waterman, in...

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