People v. Foglesong

• Decision Date: 05 April 1898
• Citation: 116 Mich. 556,74 N.W. 730
• Court: Michigan Supreme Court
• Parties: PEOPLE v. FOGLESONG.

74 N.W. 730

116 Mich. 556

PEOPLE v. FOGLESONG.

Supreme Court of Michigan

April 5, 1898

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

Myron P. Foglesong was convicted of murder, and he brings error. Reversed.

Stone & Twiss and O. A. Janes, for respondent.

Fred A Maynard (S. D. Bishopp and F. A. Lyon, of counsel), for the People.

MOORE J.

The respondent was convicted of murder, and sentenced to state's prison for life. It is claimed error was committed in not excusing jurors for cause. One of the proposed jurors testified, in substance, that he had heard the facts talked about, but, from what he had heard, he did not have an impression regarding them. He had heard about their claiming poison was found at the inquest upon the body and, from what he heard, it was his impression the wife of respondent died from the effects of poison. That was his opinion then. He did not know but it would take evidence to remove it. He testified he had no impression as to the guilt or innocence of the respondent, and that he had no such fixed opinion as to the death from poisoning that he could not give the respondent a fair and impartial trial. It is said this juror should have been excused for cause. It is the contention of counsel that three things must be shown by the people before a conviction can be had: First, death by poisoning; second, that the poison was administered by the accused; third, that it was given for an unlawful purpose; and it is argued that, if the juror begins the trial with an opinion as to either of these material things, it cannot be said the juror is unbiased and impartial. Counsel rely upon the recent case of People v Thacker (Mich.) 66 N.W. 563. It must be conceded there is language used in that case which tends very strongly to support the contention of counsel. An examination of the case of People v. Thacker will show the juror had conversed with a member of the coroner's jury, and with others, and from what he had heard he had formed an opinion, not only that Mrs. Thacker had been poisoned, but had formed an opinion as to the guilt of the respondent, based upon what he had heard, and the supposition that what the member of the coroner's jury had told him was true, and, at the time he was examined, he said it would require testimony to remove the opinion he had formed. In the disposition of that case, it was not necessary to use the following language found in the opinion: "This fact, if it was a fact, that poison was found in the stomach of Mrs. Thacker, was one of the most important things in the case for the people to establish. A juror who believes that fact to exist cannot be said to be in a condition to act fairly, candidly, and impartially." This language is not in harmony with previous decisions of this court. See Stewart v. People, 23 Mich. 63, where it was held that a belief on the part of the juror that the crime charged had been committed by some one did not disqualify the juror if he had no opinion as to whether the respondent committed the offense. See, also, Cargen v. People, 39 Mich. 549, where it was held that, though the juror had a positive opinion that the deceased was murdered, this did not disqualify him if he had no opinion of the guilt or innocence of the respondent. See, also, a collation of cases in note, Smith v. Eames, 36 Am. Dec. 530; State v. Thompson, 74 Am. Dec. 342. We are still satisfied with the ruling in the case of People v. Thacker, but think the language before quoted is not a correct statement of the law. In this case the proposed juror stated he had no opinion as to the guilt or innocence of the accused, and we do not think he was disqualified. It is not possible for a murder to be committed without it being the subject of widespread comment, and it becomes the subject of many newspaper articles; so that wide-awake and intelligent men, who read newspapers, are almost sure to learn something of what is claimed in relation to whether a crime has been committed or not, and who committed it. It is not desirable that the rule in relation to the competency of jurors should be so fixed that only the ignorant and unfit can do jury service in these important cases. On the other hand, the accused is entitled to be tried by jurors who are not biased, and who do not have such fixed opinions of his guilt as will preclude them from acting impartially in his case. In addition to the cases cited, see Holt v. People, 13 Mich. 223; People v. Barker, 60 Mich. 277, 27 N.W. 539. We do not think the court erred in overruling the challenges to the proposed jurors.

Complaint is made of certain hypothetical questions which were propounded by the people to the expert witnesses. The respondent was not represented in the trial of the case by the attorneys who present the case here, but he was represented by very able counsel. When they interposed the objection to the questions, they were asked by the trial judge to indicate wherein the question left out anything which ought to be embraced in it, or wherein it included anything which ought not to be included. Counsel were either unable or unwilling to indicate to the court in what particular the question was wrong. A careful examination of the record has not disclosed to us that any of the essential things shown by the testimony on the part of the people to exist were omitted from the question, or that there was embraced in it any essential element in relation to which there was no proof offered on the part of the people. It is now claimed there should have been embraced in this question, not only the proof offered upon the part of the people, but that which was offered upon the part of the respondent. It is said it is the duty of the prosecuting officer to lay all the facts before the expert, citing People v. Vanderhoof, 71 Mich. 177, 39 N.W. 28. In the second edition of Rogers on Expert Testimony (section 27), the rule is stated as follows: "Counsel, in framing the hypothetical question, may base it upon the hypothesis of the truth of all the evidence, or an hypothesis especially framed on certain facts assumed to be proved for the purpose of the inquiry. The question is not improper simply because it includes only a part of the facts in evidence, and, if framed on the assumption of certain facts, counsel may assume the facts in accordance with his theory of them, it not being essential that he should state the facts as they actually exist. 'The claim is,' says Chief Justice Folger, 'that a hypothetical question may not be put to an expert, unless it states the facts as they exist...