Cruce v. The State Of Ga.

• Citation: 59 Ga. 84
• Court: Supreme Court of Georgia
• Decision Date: 31 August 1877
• Parties: John P. Cruce, plaintiff in error. v. The State of Georgia, defendant in error.

59 Ga. 84

John P. Cruce, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Page 84 Criminal law. Continuance. Jury. Severance. Practicein the Superior Court. Argument. Verdict. Before *Judge Lester. Cherokee Superior Court, February Term, 1877.

For the facts, see the opinions.

Gartrell & Wright, for plaintiff in error.

Thomas F. Greer, solicitor general, for the state.

BLECKLEY, Judge.

1. The showing for continuance was hardly sufficient in respect to the element of diligence. There was no abuse of discretion in denying the continuance.

2. Did the court commit material error in reference to the right of peremptory challenge? It is necessary, in the first instance, to ascertain whether the presiding judge did, in fact, make any decision to the effect that the prisoners, both together, were entitled to but twenty challenges, and that each severally was not entitled to that number. The bill of exceptions states, that after the panel was put upon the prisoners, and the first juror was sworn upon his voire dire, counsel for Cruce moved the court to allow Cruce the twenty peremptory challenges to which a prisoner charged with the offense of robbery would be entitled, which number of challenges the court refused to Cruce, and restricted the two prisoners to twenty challenges. The judge certifies that the bill of exceptions is true, adding that the same, with the brief of evidence, and the judge's explanation on the motion for new trial, contains all the evidence material to a clear understanding of the errors complained of. In the record is the motion for new trial, and annexed to the motion is a certificate, signed by the judge, in which is found the explanation referred to. The explanation affirms that Cruce did not challenge any juror without receiving the benefit of the challenge, and that the only decision made by the court on the subject of challenges was, that, as the prisoners *had not elected to be tried severally, but desired to be tried jointly, one of them could not accept and the other reject, a juror, and thus, by antagonistic demands, block the trial. Most probably, when the judge cer-tified to the bill of exceptions, he intended to re-affirm the truth of this explanation, but he omitted to do so in direct terms; whereas, he directly certified that the bill of exceptions was true. It is impossible that both should be true, unless the word decision, which is italicized by the judge, is inapplicable when the court refuses twenty challenges to one prisoner alone, and restricts both prisoners to that number. But the word is applicable; such a ruling, being made on a motion to settle the number of challenges, is a decision on the subject of challenges. So that, if the bill of exceptions is true, (and the judge certifies that it is,) there was a decision to the effect stated. In the bill of exceptions, that decision is excepted to and assigned as error, quite independently of the motion for new trial. It is, therefore, before this court in a way which would enable the court to review it, if no motion for new trial had been made. Having reached the conclusion that there was such a decision, and that it is here for review, the next question is, whether it was material. This depends upon whether, assuming it to have been erroneous, it was hurtful, or might have been hurtful to the plaintiff in error. It was made at an early stage, when the first juror was called and put upon his voire dire. The court was not obliged to make it then, but the court did make it then, and the natural effect of it was to induce the prisoners to be more economical of their challenges than they otherwise would have been. Whoever, as counsel, has assisted in the selection of a jury in a case of felony, can bear witness to the constant reference which the mind makes to the stock of challenges at command. When the stock is low, juror after juror is sometimes accepted, though far from being satisfactory, for fear of reaching empty handed, lower down on the list, a group of names much more objectionable. *To expend a challenge on one man whom you would like to reject, would perhaps leave none to be expended on another whom you must reject. Sometimes challenges become very precious. Life or liberty may depend upon them. For the court to rule in the outset that there can be in the aggregate, but half as many challenges as the law allows, is hurtful in tendency, no matter how few challenges may afterwards be made, and no matter whether all that are made be allowed or not.

Finally, was the decision erroneous? The prisoners were indicted for robbery. "Robbery by open force or violence, shall be punished by imprisonment and labor in the penitentiary for any time not less than four years, nor longer than twenty years. Robbery by intimidation, or without using force and violence, shall be punished by imprisonment and labor in the penitentiary for any time not less that two years nor longer than five years." Code, sections 4390, 4391. "Every person indicted for a crime or offense which may subject him or her, on conviction, to death, or to four years'imprisonment or longer in the penitentiary, may peremptorily challenge twenty of the jurors empaneled to try him or her.\'\' Code, section 4643. "And if twenty men were indicted for the same offense, though by one indictment, yet every prisoner should be allowed his peremptory challenges of thirty-five persons.... And if there were but one venire facias awarded to try them, the persons challenged by any one should be withdrawn against them all." 2 Hale\'s Pleas of the Crown, 268; Bacon\'s Abr., Juries, E. 9. "When the right of challenging exists, though several defendants are tried by the same inquest, each individual has a right to the full number of his challenges; but if they refuse to join in their challenges, they must be tried separately, in order to prevent the delay which might arise from the whole panel being exhausted." 1 Chit. Cr. Law, 535. "Where the trial is joint the right of peremptory challenges is in no degree narrowed or affected. Each prisoner has a right, in such case, to challenge *the full number, and is unaffected, in this respect, by what the other prisoners do. If, therefore, in a capital offense, where twenty peremptory challenges are allowable by law, there is a joint indictment and joint trial of several persons, each may challenge the whole number to which he is entitled; and if there be two on trial, the challenges may extend to forty; if three, to sixty, etc." Story, J. 4 Mason, 150. "Upon a joint trial, each prisoner may challenge his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on the trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers to which they are respectively entitled. This is the rule clearly laid by Lord Coke, Lord Hale and Sergeant Hawkins, and, indeed, by all the elementary writers." 12 Wheaton, 481. "Where there is a joint trial under a joint indictment, each defendant may challenge the whole number of jurors to which he would be entitled if tried separately." 26 Ala., 107. See 15 Ill., 536. "It has from the earliest times been held, both in England and the United States, that, where the right of peremptory challenge exists, each of the several defendants may challenge his full number, while, at the same time, he has the benefit of the challenges made by his co defendants." 1 Bishop Cr. Proc., § 967.

When two persons are tried together, for an offense that requires their joint action or concurrence, such as an affray, the acquittal of either will operate as an acquittal of both; hence, in such a case, it has been held, in effect, that they may be required to join in their challenges. 13 Ga., 324. But even this exception to the general rule is denied elsewhere. 6 Ohio, 86. There is, however, so far as we know, no conflict of authority as to the rule itself. In criminal trials, the personnel of the tribunal is important, and any substantial right in respect thereto should be sacredly guarded. When the prisoners, though jointly indicted and tried, can be severally convicted or acquitted, the composition of the juryis of precisely the same practical concern to each of *them, as if each was being tried severally. In the present case, one was convicted and the other acquitted. They went to trial under a declaration by the state, through its public law, that every person in their situation might challenge, peremptorily, twenty jurors. A government, in moving against offenders, must abide faithfully by its own laws. Any government that fails to do so, may inspire fear, but can never command respect. If the state is not prepared to allow each prisoner his statutory number of challenges, and the prisoners do not stipulate to join in their challenges, that is good cause for ordering a severance. Plowden, 100; 3 Salk., 81; 4 Mason, 165, 166; 12 Wheaton, 481, 484; 1 Bish. Cr. Proc, §§ 968, 969, 970; 1 Chit. Cr. Law, 535. Good cause existing for trying severally, the court may order a severance, though the prisoners may desire to be tried jointly. Stewart v. The State, 58 Ga., 577. While it may also be the right of the prisoners to sever (compare 34 Ga., 10, with 37 Ib., 80), there can be no doubt of their right to forbear to sever on their own motion. By exercising the latter right, why should they lose any of their challenges? The state may force on them a separate trial, unless they will consent expressly to join in their challenges. Why, then, should they be forced to yield a part of their challenges because they are willing to be tried jointly, and refuse to demand separate trials? If the state did not wish to offer them the advantages of joint trial, why were they indicted jointly? Why should the election be put upon them, when the state can elect for...