Foley v. State

• Decision Date: 03 June 1903
• Parties: FOLEY v. STATE
• Court: Wyoming Supreme Court

72 P. 627

11 Wyo. 464

FOLEY v. STATE

Supreme Court of Wyoming

June 3, 1903

ERROR to the District Court, Carbon County, HON. RICHARD H. SCOTT Judge of First Judicial District, presiding.

The plaintiff in error, M. W. Foley, was informed against for murder in the first degree in the County of Uinta. Change of venue was taken to Carbon County, and after the case was removed to Carbon County a change of judge was applied for and granted. Hon. Richard H. Scott of the First Judicial District was called in to try the case. The case came on for trial in June, and was tried by jury regularly empaneled which jury disagreed and was discharged by the court. The case was again set for trial. A motion for continuance was filed. On the 2d of July, A. D. 1900, the judge overruled the motion for continuance and ordered that the case proceed to trial. A portion of the regular panel of the trial jury having sat in the former trial, an objection was made to the regular panel by the defendant, which objection was sustained by the court. An objection was further made by the defendant to drawing the jury from the box containing the names of persons residing within five miles of the county seat. This objection was sustained by the court. The court then ordered that an open venire be issued and placed in the hands of the sheriff, requiring him to summon a certain number of jurors named in the order from the body of the county. Counsel for defendant objected to this order of the court. In due time the venire was returned and a jury selected. The jury was selected and sworn and the case proceeded to trial. After the case had been called for trial a challenge was offered to the array, which was denied by the court. The case was tried and the jury returned a verdict of guilty of murder in the second degree. Motion for a new trial was filed, overruled by the court, and the case came up on error. Only a part of the evidence was preserved in the record.

Reversed.

McMicken & Blydenburgh, for plaintiff in error.

The question of the method in which the jury was selected we take as a very serious and vital one. Exception was taken to the order of the court ordering an open venire, a challenge was made to the panel and array when the sheriff returned it, and every step taken by the court giving power to the sheriff to select the jury was objected and excepted to.

The intention of the statute is to take it out of the power of the sheriff to select a jury, and, although we do not deny that whenever a time occurs in the trial of a case or in the selecting of a jury for a case when there is no mode whatever prescribed by statute for the selection of a jury or the obtaining of talesmen, that there is an inherent power in the court to obtain a jury by the methods in vogue at common law yet we maintain that it is gross error when a court brushes aside statutory provisions and annuls by his orders in a criminal case the very objects and purposes for which the statute is enacted.

The jury law in operation at the time of this trial is contained in Sections 3340-3390, Revised Statutes. This law provides how the jury list shall be made; the officers who shall make it; the time, and all the pre-requisites of placing the names in jury box No. 1, which box is presumed to contain, when the list is complete, the names of every qualified juror within the county.

At the time when the order directing an open venire was made the court had considered two objections or papers filed in the case, one a motion to quash the panel that was in attendance upon the court, and the other an objection to being tried by a jury selected out of the five-mile limit box. The court sustained the last objection on constitutional grounds; the State confessed the first motion to the quashing of the panel, but the court, notwithstanding that confession in the same order, ruled that the boxes are in compliance with law. What then was the situation? The regular panel having been quashed, there were no jurors in attendance upon the court for the trial of this case. Jury box No. 1 had been decided to be a valid and legal box, and that part of the objection of the defendant that referred to the boxes was overruled. The business of the court required a jury for the trial of a criminal case; there was no jury in attendance on the court. It became, therefore, the duty of the court to immediately issue an order and have it spread upon the minutes of the court for the drawing of the jury out of box No. 1, and all other or different modes of procedure were illegal and void and due exceptions were taken to the action of the court in all matters connected with the issuing of these open venires.

A total departure from the provisions of law is good grounds for challenge to the array. (Thompson on Trials, Sec. 33; State v. Du Roeba, 20 La. Ann., 356; State v. Morgan, 20 La. Ann., 442; State v. Jenkins, 32 Kan. 477; Zazone v. State, 97 Tenn. 101.)

When selection is not made by officer or officers appointed by statute, the challenge to the array will be sustained. (Thompson on Trials, Sec. 33; Elkins v. State, 1 Tex. App., 539; Shackelford v. State, 2 Tex. App., 385; Rapalje Crim. Pro., Sec. 180; Green v. State, 59 Md. 123; Posey v. State, 73 Ala. 490; Dupont v. McAdow, 9 Pac. Rep., 925; State v. Winser, 5 Harr. (Del.), 512; William v. Com., 91 Pa. St., 493; Hall v. Com., 80 Va. 110; Honesty v. Com., 81 Va. 283; Spurgeon v. Com., 86 Va. 652; Kermon v. Gilmer, 2 Pac., 24; Rogers v. State, 33 Md. 543; Lincoln v. Stowell, 73 Ill. 246; Clinton v. Englebrecht, 13 Wall., 434; Brazier v. State, 44 Ala. 387; State v. Yordi, 30 Kan. 221; Jones v. State, 3 Blackf., 37; McCloskey v. People, 5 Park. Crim., 308; 1 Brown (Pa.), 121; Baker v. Steamboat, 14 Ia. 214.)

The court had no right to issue an open venire until the affirmative methods prescribed by statute had been exhausted. (Clawson v. U. S. Sup. Court Rep. (L. Ed.), Book 29, 180; 17 Ency. L. (2d Ed.), 1111b.) Statutory provisions respecting the constitution of juries must be followed. (State v. Jennings, 15 Rich. L. (S. Car.), 42; State v. Pratt, 15 Rich. L. (S. Car.), 47.)

In modern practice the grounds which will support a challenge to the array or an objection of a similar character usually embrace those recognized at the common law and those specially designated by statute, and it may be stated generally that objections to the array will be sustained for any material departure from the prescribed mode of the selecting, listing or drawing jurors. (12 Ency. of Pl. & Pr., 420; State v. Simons (Kan.), 60 P. 1052; Healy v. People, 177 Ill. 306; People v. Stewart, 7 Cal. 141.)

Written declarations not signed or sworn to by the deceased are not admissible in evidence. (State v. Fraunburg, 40 Ia. 555; State v. Elliot, 45 Ia. 486; State v. Wilson, 24 Kan. 189; Beets v. State, 19 Tenn. 617; State v. Sullivan, 51 Ia. 142; Anderson v. State, 79 Ala. 5.)

Dying declarations to be admissible must be confined to the act of killing and must not contain matters or facts anterior to and not immediately connected with the killing. (State v. Draper, 65 Mo. 355; Leiber v. Com., 9 Bush., 11 (Ky.); Mose v. State, 35 Ala. 421; Johnson v. State, 17 Ala. 618; Ben v. State, 37 Ala. 103; State v. Shelton, 2 Jones (N. C.), 360; Nelson v. State, 7 Humph., 542; Hackett v. People, 54 Barb., 370; Underhill Crim. Ev., Sec. 109; State v. Eddon (Wash.), 36 P. 139; State v. Johnson, 26 S. Car., 152-53; People v. Fong Ah Sing, 64 Cal. 253; Star v. Com., 97 Ky. 193; North v. People, 139 Ill. 81; State v. Wood, 58 Vt. 560; Merrill v. State, 58 Miss. 65-67; Jones v. State, 91 Ind. 66; West v. State, 7 Tex. App., 150; People v. Knapp, 26 Mich. 112; Pulman v. State, 88 Ala. 1; Johnson v. State, 102 Ala. 1; People v. Omstead, 30 Mich. 431; State v. Center, 35 Vt. 378; 6 Ency. L. (1st Ed.), 123; Ex parte Barber, 16 Tex. App., 369; State v. Pengo, 80 Ia. 37; Collins v. Com., 75 Ky. 271; State v. Van Zant, 80 Mo. 67.)

It may be said that the error in admitting the whole statement was cured by the defendant's counsel insisting that all go in, if any. But it will be noticed that the objection of defendant's counsel was full and complete, and that the court overruled the objection and that immediately the whole statement was read to the jury, and that after the cross-examination of the witness by defendant's counsel had begun the court made a remark that the address and jurat on the statement be not read, and it was to this that defendant's counsel insisted that it all be read to the jury, which was done.

It was the duty of the court, when the objection was made, to strike out and not allow to be read all those portions which were not proper to go to the jury, and the error was committed when the exhibit was admitted and read as a whole.

Instruction No. 15, given on request of the prosecution, is error, as it instructs the jury that the burden of proving his innocence is on the defendant, when his defense is self-defense.

In this instruction the court says the claim of self-defense presupposes that O'Connor was intentionally killed. That it is plain when one kills another in self-defense, he intends to do it. This is not true. Numerous cases have occurred and can be supposed when a man kills another in defending himself, when he did not intend to kill him, but only to wound him or render him incapable of committing a violent injury upon the defendant.

Although it was formerly held in some jurisdictions that in self-defense the burden of proof was on the defendant to show by a preponderance of the evidence that he acted in self-defense, the late and more reasonable doctrine is that the burden of proof in a criminal case never shifts, not even in self-defense. (McClain on Crim. L., Vol. 1, Sec. 316; ...