People v. Barker

• Decision Date: 08 April 1886
• Citation: 60 Mich. 277,27 N.W. 539
• Court: Michigan Supreme Court
• Parties: PEOPLE v. BARKER.

27 N.W. 539

60 Mich. 277

PEOPLE v. BARKER.

Supreme Court of Michigan

April 8, 1886

Error to Van Buren.

MORSE J., dissents.

The Attorney General, for plaintiff.

B.F. Heckert and S.D. Clay, for defendants.

CHAMPLIN, J.

The respondents were informed against for murder and were convicted of murder in the second degree. Marshall G. Barker was sentenced to imprisonment for life, and William K. Barker for the term of 25 years. There are 49 assignments of error, which may be considered under three heads, namely Those relating to the selection of the jury; those relating to the introduction of expert testimony; and those relating to the alleged confessions of respondents.

1. The respondents claimed the right to challenge peremptorily 60 jurors, which was acceded to by the court. The qualification of the jurors challenged was tried and determined in open court by the circuit judge, who rejected some who were challenged for cause, and accepted others.

It is claimed by the counsel for respondents that the circuit judge erred in accepting certain jurors who were challenged for cause of bias, or of entertaining opinions relative to the guilt or innocence of the respondents which would require evidence to remove. The constitution of the state provides that, "in every criminal prosecution, the accused shall have the right to a speedy and public trial, by an impartial jury." Article 6, � 28.

It was said in Holt v. People, 13 Mich. 228: "To require that jurors shall come to the investigation of criminal charges with minds entirely unimpressed by what they may have heard in regard to them, or entirely without information concerning them, would be, in many cases, to exclude every man from the panel who was fit to sit as a juror. With the present means of information, the facts or rumors concerning an atrocious crime are, in a very few hours, or days at farthest, spread before every man of reading and intelligence within the district from which jurors are to be drawn, and over the whole country, if the atrocity be especially great. And there are some crimes so great and striking that even the most ignorant will have information and impressions in regard to them; and the rule as stated, applied to such cases, would render the impaneling of a jury for their trial impossible, and make their very enormity a complete protection from punishment. Without attempting or endeavoring to lay down rules for all cases, it is sufficient for us to say that the showing in the present case falls far short of establishing cause for challenge. The juror is shown to have formed a partial opinion, but not a positive opinion. This opinion was not based upon anything which he had himself witnessed, or from information derived from those who claimed to know the facts but upon street rumors. Now, when a person says that he has formed, from street rumors, a partial, but not a positive, opinion, we think he is to be understood as speaking only of those impressions which every one receives insensibly when a charge of crime is made, but from which, so far from amounting to a settled conviction, do not in the least preclude an impartial examination of the facts, when afterwards presented in the form of legal testimony."

This case was cited with approval in Stephens v. People, 38 Mich. 739. The opinion in this case was written by the same learned judge who wrote the opinion in Holt v. People, and in this case he said: "The question on this record is whether that jury can be an impartial one whose members are already so impressed with the guilt of the accused that evidence would be required to overcome such impressions. It seems to us that this question needs only to be stated; it calls for no discussion. This woman, instead of entering upon her trial supported by a presumption of innocence, was, in the minds of the jury when they were impaneled, condemned already; and by their own statements, under oath, it is manifest that this condemnation would stand against her until removed by evidence. Under such circumstances, it is idle to inquire of jurors whether or not they can return just and impartial verdicts; the more clear and positive were their previous impressions of guilt, the more certain may they be that they can act impartially in condemning the guilty party. They go into the jury-box in a state of mind that is well calculated to give color of guilt to all the evidence; and if the accused escapes conviction, it will not be because the evidence has established guilt beyond a reasonable doubt, but because an accused party, condemned in advance, and called upon to exculpate himself before a prejudiced tribunal, has succeeded in doing so."

The subject came under review again in Ulrich v. People, 39 Mich. 245, and the court said "that it appeared that one of the jurors had formed and retained an opinion which evidence would be required to remove. It appeared, upon examination of this juror, that he had read a little about the case,--in all about twelve lines; that from this he had formed an opinion, not of a fixed character, but which would require evidence to remove; and he believed that he would be able to render an impartial verdict according to the evidence submitted upon the trial. What the opinion was, whether favorable or unfavorable to the accused, did not appear. The showing as to the incompetency of this juror was insufficient. The opinion he had formed was not based upon anything he had himself witnessed, or from information derived from any one who claimed to know the facts, but from reading a few lines in a newspaper, which could not have given a very full account of the transaction, or made a very deep or lasting impression upon his mind, or one that would preclude him from an impartial examination of the facts as presented during the trial."

From what has been said by this court in the cases cited, it appears that the opinion entertained by a juror which disqualifies him is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already. It is not because it will require some evidence to remove impressions, or opinions formed from rumors, newspaper statements, or from whatever other sources these impressions may have been received, that a juror is disqualified. The sources of information are important in determining the effect likely to have been produced upon the mind of the juror, and the influence likely to be exerted upon his judgment; but the human mind is so constituted that impressions made upon it which lead towards certain conclusions, whether reached or not, will always require other impressions to be made to eradicate the former ones, or to lead towards different conclusions. In other words, will require some evidence to remove it. We all are conscious that notions entertained by us are not all of the same staple character, and range all the way from conviction, which is the ultimate effect of ratiocination, to the passing comment or idle words that leave no permanent impression. The question, therefore, must be always one of degree, and the trier is called upon to determine whether the opinion entertained by the juror is of that fixed or permanent character which disqualifies him from coming to the case in a fair, candid, and impartial frame of mind, which is unaffected with prejudice or favor to either party.

Each of the jurors challenged stated, under oath, that from what they had read in the newspapers, and talk in the neighborhood, and rumors, they had formed opinions which would require evidence to remove. One said it would take good evidence,--decided evidence. Two of them had formed their opinions from what they had read in newspapers, purporting to be a confession made by the respondents, and that it would require evidence to change such opinion. It seems to me that the evidence shows that these jurors had such fixed opinions as disqualified them from sitting as jurors. The learned circuit judge thought otherwise, and overruled the challenges to the favor. They were, in each instance, challenged by the respondents peremptorily, and rejected. The question now is, were the respondents prejudiced by the rulings of the court? It appears from the record that after the jury were finally impaneled and sworn the respondents had 22 peremptory challenges remaining unused. It is not perceived how he was injured, or in any manner prejudiced, by being compelled to challenge these jurors peremptorily. If the law was that the respondent could exercise the right of peremptorily challenging jurors without limit, until he was satisfied with the jury, and the court should overrule his challenges for cause, and he should then reject the juror peremptorily, no harm could possibly come to him by such erroneous ruling. Neither can it work harm where, in pursuing such course, his right of challenge is not exhausted before he secures a jury with whom he is satisfied to be tried. The point was directly ruled in Sullings v. Shakespeare, 46 Mich. 408; S.C. 9 N.W. 451.

During the progress of the cause, and before a full panel had been secured, a juror had been accepted as one of the panel, and the court adjourned at the close of one day until 9 o'clock the next day. Upon assembling at the appointed time, this juror did not appear. After a delay of nearly an hour, and search, he was found in a room of the hotel playing pool. The court fined the juryman $10 for contempt of court for not being present when the court opened, and excused him from the panel, and ordered him to step aside. His place was afterwards filled by another juror. The respondents excepted to that part of the judge's order which excused the juror from serving. The circuit judge is...