Hill v. People

• Decision Date: 13 January 1868
• Citation: 16 Mich. 351
• Court: Michigan Supreme Court
• Parties: William Hill v. The People

16 Mich. 351

William Hill v. The People

Supreme Court of Michigan

January 13, 1868

Heard January 10, 1868 [Syllabus Material]

Error to Alpena circuit.

The defendant below was convicted upon an information for murder.

After the trial it was discovered that one of the jurors was an alien.

A motion was made for a new trial, founded upon affidavits tending to show the alienage of the juror.

The motion was overruled.

Error is assigned upon said fact.

Judgment reversed, and a new trial ordered.

A. C Maxwell and T. C. Grier, for plaintiff in error:

The case presents the single question, whether an alien is or is not a competent juror in a capital case.

The Compiled Laws, § 6068, makes provision for the trial of criminal cases, and provides that jurors shall be drawn and returned as provided by law for the trial of issues of fact in civil cases.

The statute, Comp. L., § 4351, provides:

That the jurors selected shall be assessed on the assessment roll of the township or ward for the same year; shall be suitable persons having the qualifications of electors. They shall be of approved character, and free from all legal exceptions.

The statute, § 6082, entitled, "Of new trials and exceptions in criminal cases," provides that any person who shall be convicted of any offense before any court of record, considering himself aggrieved by any opinion, direction or judgment of the court in any matter of law, may allege exceptions to such opinion, direction or judgment, etc.

It is under these provisions of this statute that the present bill of exceptions was taken to the decision of the circuit court refusing a new trial.

As to the common law qualifications of a juror (3 Black. Com., 362), the American cases are not in entire harmony; but we say that the weight of authority shows that a trial before an alien juror is no trial; and that a new trial ought to be granted.

Among those cases which hold without qualification that the verdict is a nullity, or that a new trial should be granted, if the defect of the qualification of the juror was unknown, see 15 Vt. 61; 1 Conn. 401; 16 Ind. 298; 26 Ill. 347; 5 Wis. 324; 1 Scam. 476; 4 Bibb. 90; 13 Smedes and Marsh., 286; 1 B. Mon., 213; 32 Me. 310; 47 Id. 593; 6 Clarke, Ia., 162; 10 Ia. 308; 18 N. Y., 128; 1 Met. Ky., 365; 41 N. H., 550, 551; Bishop Crim. Proceed., 761-2; 2 Doug. 367; Comp. L., §§ 27, 28, p. 61.

Wm. L. Stoughton, Attorney-General, for the people:

1. A motion for a new trial, founded on affidavits, is addressed to the sound discretion of the court, and error can not be assigned upon a refusal to grant such motion: 1 Comp. L., § 6082; 2 Whart. Am. Cr. L., §§ 3079, 3232; 11 Conn. 415; 1 Doug. 106; 2 Mich. 404; 4 Id. 336; 12 Id. 368, 440.

2. The affidavit of the juror, William Dickson, was inadmissible: 5 Cow. 106; 6 Id. 53; 5 Conn. 348; 1 Cal. 403; 22 Pick. 136; 5 Ired. 401.

The remaining affidavits were upon information and belief, and state no facts upon which the court could be called upon to act.

3. The affidavits upon which a motion for a new trial are founded form no part of the record; and can not be looked into for the purpose of determining whether the court erred or not: 8 Mich. 117.

4. That which is a cause for challenge is not necessarily a ground for a new trial; and although there is some conflict in the American cases, the rule seems to be settled upon the weight of authority, and upon principle, that the verdict of a jury will not be disturbed on account of the incapacity of one of the jurors, who might have been challenged but was not, especially where no injury is shown to have arisen from that cause: Whart. Am. Cr. L., § 3220; 19 Geo. 628; 2 Bay 150; 4 Dall. 353; 6 Greenl. 307; 2 Porter 121; 2 Ala. 297; 17 Id. 434; 1 Pick. 38; 9 Mass. 107; 14 Id. 205; 2 Ohio St., 164; 15 E. C. L., 252; 12 East, 229; 13 Conn. 453; 20 Id. 37; 3 Greenl. 215; 7 Cranch 290.

5. The defendant did not exhaust his challenges (Comp. L., § 6072), and can not allege his own negligence as a cause for setting aside the verdict, and it is not shown and does not appear that the error complained of was intentional, or that it affected him injuriously, and a new trial ought not therefore to be granted: 6 Mich. 287; 10 Id. 9.

Christiancy, J. Graves, J. and Cooley, Ch. J. Campbell, J. concurred.

OPINION

Christiancy J.:

The defendant below was tried and convicted in the circuit court for the county of Alpena, for the crime of murder. He moved for a new trial on the ground that William Dickson, one of the jurors before whom the trial was had, was an alien, and not a citizen of the United States or of this state, and that this was unknown to the defendant or his counsel until after the rendition of the verdict.

These facts were shown by affidavits, and appear to have been undisputed.

The circuit judge refused to grant the new trial, not upon the ground that these facts were not properly and fully established, but upon the broad ground that they did not constitute sufficient ground for a new trial. To this decision exception was taken by the defendant; and the judge has very properly certified the whole proceeding had before him for a new trial, his decision thereon, and the exceptions, all of which are embodied in the return to the writ of error.

It is objected by the attorney-general that the affidavits, in support of a motion for a new trial, form no part of the record, for which he cites Crippen v. The People, 8 Mich. 117. It is true that as mere affidavits, without anything equivalent to a finding by the court upon the facts stated, they would constitute no part of the record for our action. It is also true that when the motion is based upon matters of mere discretion, neither the refusal of the motion nor the finding of the court upon the facts stated in them, would form any ground for a reversal of the judgment.

But when the question raised by the motion is one of law, and the judge has found the truth of the facts stated in the affidavits, or in his decision upon the motion takes those facts for granted, and the whole matter is incorporated in the exceptions which he has signed, as in this case, we think the facts, the motion based upon, his decision thereon, and the exceptions, constitute a part of the record for our adjudication. And whenever in such a case the question raised can be fairly claimed to be one of law, we think it is the duty of the judge to find as to the truth of the affidavits; and if he finds them to be true, to incorporate the motion, the facts and his decision thereon, with the exceptions, as in the present case. It would seem to be the only mode left to a defendant of obtaining a review upon important questions of law thus raised.

We must, therefore, consider the question raised by the motion for a new trial as properly before us for adjudication. And we must proceed upon the admitted fact that one of the jurors was an alien, and not a citizen or elector of this state.

The statute (2 Comp. L., § 4351) requires that jurors shall have the qualifications of electors. It is admitted this juror was not qualified. This is not a case of a partial disqualification growing out of, or connected with his relation to this or any other particular cause; but a total disqualification to be a juror in any case. The law does not recognize him as a juror at all; and in legal contemplation the case is to be treated as if he had never been placed upon the jury; if not still worse, as an outsider who had no right to participate in their deliberations, and whose illegal participation may have had an improper influence upon the verdict. The most favorable view for the prosecution which can be taken, is to consider the place of this juror to have been left blank, and that this jury therefore, consisted of but eleven men.

Our constitution in retaining the right of trial by jury, tacitly refers to and adopts the common law number. In criminal cases in courts of record this is put beyond all doubt by the 28th section of article 7. "In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record:" Brown v. State, 8 Blackf. 561; Work v. State, 2 Ohio St. 296; Cancemi v. People, 18 N.Y. 128; Campau v. Detroit, 14 Mich. 276; 2 Bennett and Heard Lead. Cr. Cas., 336, note.

This position is not denied by the attorney-general, but it is insisted that by neglecting to challenge this pretended juror, the defendant has lost the right to avail himself of the objection; in other words, that he has waived all objection to this juror, or to a trial by a jury of eleven qualified jurors. It might be a sufficient answer to this position of waiver, to say, that our statutes giving the right of challenge, when considered in connection with the provisions in reference to the qualification and summoning of jurors, contemplate a panel of twelve qualified electors already in the jury box before he is called upon to exercise the right of challenge, and that his right to challenge is, by the law, supposed to be exercised upon such men only as the law recognizes as competent to be called for jurymen; in other words, electors. Suppose a woman, or a child six years of age, is...