Keffer v. State

• Decision Date: 20 August 1903
• Citation: 12 Wyo. 49,73 P. 556
• Parties: KEFFER v. STATE
• Court: Wyoming Supreme Court

73 P. 556

12 Wyo. 49

KEFFER v. STATE

Supreme Court of Wyoming

August 20, 1903

ERROR to the District Court, Fremont County, HON. CHARLES W BRAMEL, Judge.

James Keffer was convicted of murder in the first degree, and sentenced to suffer the death penalty. He prosecuted proceedings in error. The material facts are stated in the opinion.

Affirmed.

E. H Fourt and D. A. Preston, for plaintiff in error.

The motion for continuance should have been granted; there was no finding of lack of diligence, and subpoenas had been issued in ample time, and the defendant was justified in relying on the promises of the witnesses to attend the trial. (People v. Brown, 46 Cal. 103; People v Dodge, 28 Cal. 445; Brown v. State, 65 Ga. 332; Corbin v. People, 131 Ill. 615; Sutton v. People, 119 Ill. 250; Spencer v. State, 8 Blackf., 281; Gross v. State, 2 Ind. 135; 65 P. 945.)

The accused was entitled to a trial by an impartial jury. (Const., Art., 1, Secs. 6, 7, 8, 10; Art. 6, Amendments U. S. Const.) The examination of the jurors disclosed that a majority were either biased or prejudiced, and the challenges of such jurors were overruled. An opinion formed from any source other than newspaper reports and rumor disqualifies a juror; and the opinions formed by several of the jurors were such as clearly to disqualify them. (State v. Hultz, 106 Mo. 41; Young v. Johnson, 25 N. E., 363; Walker v. State, 1 id., 856; People v. Shinfelt, 61 Mich. 237; Thurman v. State, 43 N. W., 404; People v. McQuade, 110 N.Y. 284; Vance v. State, 56 Ark. 402; King v. State, 89 Ala. 146; Dugle v. State, 100 Ind. 259; Brown v. State, 70 Ind. 576; Wood v. State, 134 Ind. 35; Bryant v. State, 7 Wyo., 311; Carter v. Ter., 3 Wyo., 193; Black v. Ter., id., 313.) If there is any doubt as to the ability of a juror to render an impartial verdict, he should be excluded. (Holt v. People, 13 Mich. 224.) And the statements of the jurors must be taken as true where there is no finding of fact by the court. The existence of a state of mind in the juror evincing enmity against or bias in favor of either party is a ground for challenge for cause. (R. S. Wyo., Sec. 3641.) Under similar statutes it has been held that an opinion upon newspaper reports were such as to disclose actual bias and prejudice. (Rose v. State, 2 Wash., 310; State v. Coella, 3 id., 99; State v. Beatty, 25 P. 899.)

The admissions of the defendant on trial as to the events of the alleged killing admitted in rebuttal were in the nature of confessions, and the defendant was entitled to explain them. (Const., Art. 1, Sec. 10; State v. Hunsaker, 16 Or. 497; Hire v. State, 144 Ind. 359; Ry. Co. v. Noel, 77 Ind. 122; Merrick v. State, 63 Ind. 327; People v. Kindra, 102 Mich. 147; Ransholton v. State, 144 Ind. 250.)

The refusal to stay execution was error. (R. S. Wyo., Sec. 5394.) The recalling of the defendant to inform him of the verdict and inquire whether he had anything to say why judgment should not be pronounced after sentence had been pronounced without such statutory formalities having previously been complied with did not cure the error. The defendant was therefore denied a substantial right. (R. S. Wyo., Sec. 5390; 1 Bish. Cr. Proc., Sec. 1293; State v. Trexevant, 47 Am. Rep., 840; McCue v. Comm., 21 id., 7.)

The failure to number and sign the instructions was prejudicial error. (R. S. Wyo., Sec. 3644.) The evidence concerning money and checks found on the person of the deceased, and that possibly five dollars may have been taken from his person, was not competent, in view of the fact that some person other than the defendant had been at the place, who had evidently stolen there and hidden a shotgun, and the fact that the money the deceased had referred to in statements before the killing was the checks found on his person after his death. The evidence was too remote to prove motive on the part of the accused.

The court, during the examination of a juror who had stated that he was opposed to capital punishment, remarked: "If a man assassinates another, you wouldn't favor hanging the assassin?" The remark or question was calculated to impress on the minds of the jurors that this was a case of cold-blooded assassination and quite different from the usual case where capital punishment was administered, and it seemed to suggest that a juror might make an exception in the case then on trial. Such a remark in a case about which there is an intense public feeling is well calculated to intensify the feeling and to indicate that the court desires a verdict in which the death penalty may be inflicted. The remarks aforesaid constituted such error as to entitle the defendant to a new trial. (State v. Coella, 28 P. 28; People v. Matthai, 67 P. 694; Hughes Cr. Law, p. 747.)

J. A. Van Orsdel, Attorney General, for the State.

Information was filed in this case during the December term of the District Court. Counsel was appointed to defend the accused. He was arraigned and, on motion of the defendant, the case was continued until the July term. That term opened July 7th, and not until the 24th of that month was the motion for continuance filed that was overruled. The court exercised a sound discretion and properly declined to grant a continuance. A postponement to procure the testimony of witnesses who are beyond the jurisdiction of the court will not be granted where, although having had adequate opportunity, the applicant has used no diligence to procure their deposition. (State v. McCoy, 111 Mo. 517; Haile v. State (Tex.), 43 S. W., 999; State v. Farrington, 90 Ia. 673; State v. Lewis, 56 Kan. 374; People v. Ah Lee Doon, 97 Cal. 171; Brittain v. State (Tex.), 40 S. W., 297; State v. Murphy, 48 S. C., 1; State v. Walker, 13 Tex. App., 618; 77 Ga. 98; State v. Duffy, 1 So., 184; State v. Files, 3 Brev., 304; Deane v. Scriba, 2 Call (Va.), 415.)

The whole subject of the qualification of jurors in criminal cases has undergone a radical change in recent years. It is quite generally held now that the matter is largely within the discretion of the trial court. The great test seems to be whether the juror, notwithstanding what he may have heard or read regarding the case, can say that, under the law and the evidence, he can give the accused a fair and impartial trial. Under our statutes, it is not ground of challenge that the juror has formed an opinion on newspaper reports, or on conversations with persons who purported to know the facts, or even with persons who afterwards are used as witnesses, if the opinion so formed is not one which will bias and prejudice the juror so as to render it impossible for him to try the case fairly and impartially upon the law and the evidence. (Bryant v. State, 7 Wyo., 311; Staup v. Comm., 74 Pa. St., 458; 75 id., 424; 76 id., 414; 79 id., 308; Stokes v. People, 53 N.Y. 164; Carson v. State, 50 Ala. 134; Anderson v. State, 14 Ga. 709; Wright v. State, 18 Ga. 383; State v. Fox, 25 N. J. L., 566; State v. Hinkle, 6 Ia., 380; Baxter v. People, 8 Ill., 368; State v. Sater, 8 Ia., 420; State v. Brown, 4 La. Ann., 505; State v. Davis, 29 Mo. 391; State v. Ellington, 7 Ired., 61; Comm. v. Webster, 5 Cush., 295; Holt v. People, 13 Mich. 224; O'Connor v. State, 9 Fla., 215; Fahnestock v. State, 23 Ind. 231; Reynolds v. U.S. 98 U.S. 145; State v. Meeker, 54 Vt. 112.) Every juror in this case swore that, notwithstanding his opinion, he would not be prevented thereby from giving the defendant a fair and impartial trial under the law and evidence. The answers of some of them possibly brings the court close to the border line of judicial discretion.

The previous admissions of the defendant were competent in rebuttal of his testimony that he was unconscious of the events of the killing. No offer to prove anything by the prisoner was made after the introduction of that evidence. He merely claimed the right to explain how the statements were made. He was not recalled to the witness stand, nor were any questions asked him as to such statements. There is, therefore, nothing on that point for the court to consider.

The stay of execution should have been granted by the trial court, but the defendant was not prejudiced, since the stay was allowed by the Supreme Court. The omission to comply with the statute as to interrogating the defendant at the time of the sentence was noticed a few hours after the sentence, and the statutory questions were then propounded. Upon his stating that he had nothing to say, the court then announced that the judgment as theretofore pronounced would stand as the judgment of the court. That was a proper proceeding. (Bish. New Cr. Proc., Sec. 1293.) Had the court failed to recall him as aforesaid, it might have been necessary to remand the case for that purpose, and that purpose alone. But, having recalled him and complied then with the statutory requirement, the error was cured.

The defendant was not prejudiced by the failure to number and sign the instructions. They are all before the court. No exceptions were taken to them, and all objections to them, if any, are waived. It was not error to admit the evidence of the possession of money by the deceased. (Kennedy v. People, 39 N.Y. 245; State v. Donnelly, 130 Mo. 642.) The alleged improper remarks of the court do not appear in the record, and cannot be considered.

CORN, CHIEF JUSTICE. KNIGHT, J., and POTTER, J., concur.

OPINION

CORN, CHIEF JUSTICE.

The plaintiff in error was found guilty of murder in the first degree and sentenced to death. The defense was that the accused was insane and not legally responsible at the time the deceased was slain.

The first error assigned is that the court improperly denied the application of the accused for a continuance. He sets out in his affidavit that by reason of injuries received...