Nicholson v. People

• Decision Date: 12 January 1903
• Citation: 31 Colo. 53,71 P. 377
• Parties: NICHOLSON v. PEOPLE.
• Court: Colorado Supreme Court

71 P. 377

31 Colo. 53

NICHOLSON v. PEOPLE.

Supreme Court of Colorado

January 12, 1903

Error to district court, Baca county.

Zeb Nicholson was convicted of murder, and he brings error. Affirmed.

Allen &amp Webster, E. Sample, and J. K. Doughty, for plaintiff in error.

C. C Post, Atty. Gen., Caesar A. Roberts, James D. Merwin and George M. Post, Asst. Attys. Gen., for the People.

STEELE J.

The defendant was found guilty of murder in the second degree and duly sentenced. He asks for a reversal of the judgment because: '(1) The court erred in refusing to permit the defendant to exercise his tenth peremptory challenge on a juror not satisfactory to the defendant before the jury were sworn to try the cause, to which the defendant then and there excepted. (2) The court erred in compelling the defendant to exercise peremtory challenges to the jury regardless of the number exercised by the prosecution.'

From the bill of exceptions it appears that upon the trial twelve men were sworn on their voir dire, and, after examination, passed for cause by the district attorney and the attorney for the defendant. The district attorney then peremptorily challenged four jurors, and four men of the regular panel were called, and took seats in the box vacated by those challenged by the district attorney. These four were passed for cause by the district attorney and by the attorney for the defendant. Thereupon the defendant peremptorily challenged seven, and seven men from the regular panel were called, and took the seats vacated by those challenged by the defendant. These seven were passed for cause by both parties. The district attorney then peremptorily challenged three of the seven called, and three men from the regular panel took the places of those challenged, and were passed for cause by both the people and the defendant. Thereupon the defendant challenged two of the three men last called peremptorily, and two men were called to fill the places of those challenged. The defendant was then asked by the court if he had any further peremptory challenges to exercise, and he answered that he did not desire to exercise the same at that time, and the defendant was then informed that, if he desired to exercise a peremptory challenge upon any juror then in the box, he must do so at that time, and that, if he passed the jurors then in the box, he would be held to have accepted the same. Thereupon the district attorney peremptorily challenged one of the jurors in the box, and one of the men from the regular panel was called in the place of the juror challenged. The juror last called was passed for cause by the district attorney and counsel for the defendant. The defendant then sought to challenge peremptorily one juror, but not the juror last called, and the court denied defendant the right to challenge peremptorily any other juror than the last one called.

The defendant contends that he had the right to ten peremptory challenges, and that the right could be exercised at any time before the jury was sworn to try the cause. The people challenged seven jurors, and the defendant nine. The court did not deny the defendant the right to exercise ten peremptory challenges, but limited the exercise of the right to those not in the box at the time the other peremptory challenges were made by the defendant. The defendant declined to exercise any further challenge, and thereupon the district attorney challenged one juror, and a juror in attendance upon the regular panel was called to the box, and the defendant then sought to challenge not the juror last called, but a juror who was in the box at the time of the last challenge by the district attorney. The court refused to allow him to exercise the challenge. No exception appears to have been taken to the order or manner in which the challenges were made by the parties otherwise than here stated. Challenges should be exercised alternately, one by one, and after each challenge the panel refilled. This gives the parties an opportunity to challenge in proper order, and would seem to be the most orderly way of selecting a jury. There appears to be a conflict of authority upon the subject of the right to challenge a juror at any time before he is sworn to try the cause. The practice of the states, while modeled after the common law, is somewhat different. At common law, as a juror was accepted, he was sworn to try the cause and a peremptory challenge could not be made; but in most of the states only one oath is administered, and that after the jurors are selected, and each party can challenge until the oath is finally administered to the jury. In this case, instead of requiring the parties to accept the individual jurors, and then administering the oath, the court did not direct the oath to be administered until the challenges were exhausted or waived. The defendant complains that by the practice prevailing in the district court he was required to exercise a peremptory challenge without regard to the number exercised by ...