People v. Hopt

• Decision Date: 26 January 1886
• Citation: 9 P. 407,4 Utah 247
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. FRED. HOPT, APPELLANT

9 P. 407

4 Utah 247

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. FRED. HOPT, APPELLANT

Supreme Court of Utah

January 26, 1886

APPEAL from a judgment of conviction of the district court of the third district and from an order refusing a new trial.

The juror Gabott, challenged both for actual and implied bias testified on his direct examination on voir dire, that he had heard of the case through the newspapers, and had read what was represented to be the evidence; that he had talked about it since that time; that he did not think he had ever expressed an opinion on the case, but that he had formed a qualified opinion, that is if the evidence were true and if the reports were true; that he had an opinion of the guilt or innocence of the accused that it would take evidence to remove; but that he thought he could go into the jury box and sit as if he had never heard of the case, and that what he had heard would not make the least difference. On cross-examination he said that he knew nothing about the case except what he had read from time to time in the public press; that, if what he had heard turned out to be the facts in the case, he had an opinion, otherwise not; that is, his opinion was a qualified one, and that according to his present state of mind, he could sit on the jury and determine the case without reference to anything he had heard; that he was not conscious of any bias or prejudice that might prevent him from dealing with the defendant impartially; and that he thought he could try the case according to the law and the evidence given in the case. On his re-examination he further stated that he would be guided by the evidence altogether without being influenced by any opinion he might then have or might have previously formed. The court held the juror to be competent.

The juror, Winchester, who was also challenged for actual and implied bias, testified on voir dire, that he had heard of the case through the newspapers; that he had heard it talked of some years ago; that he had heard what purported to be the evidence as given in the newspapers on previous trials, and believed he had formed and expressed an opinion as to the guilt or innocence of the accused, and though it was an unqualified opinion, it was not a fixed or settled one; that at the time he read the papers, he had formed such an opinion as would have required testimony to remove it from his mind and if his memory was refreshed as to the testimony there would probably be a renewal of the opinion he had formed; that he had not talked with any one and could hardly tell the circumstances now; that he believed that his mind was free from any impression, and that he could sit on the jury and try the case precisely as if he had never heard of it or read of it. To inquiry of the court he said that he could try the defendant impartially according to the evidence. The court, thereupon, held that he was competent, and the challenge was disallowed. The defendant, thereupon, peremptorily challenged the juror and he was excused.

The juror, Young, challenged for actual bias, testified that he had heard of the cause, that he had never talked with any one who pretended to know about it; that he had impressions as to the guilt or innocence of the defendant, but could not say that he had ever formed any opinion on the subject, and did not remember that he had ever expressed any; that possibly his impressions were strong enough to create, from sympathy, some bias or prejudice, but he thought he could sit on the jury and try the case impartially, as if he had never heard of it before.

The challenge was disallowed and the juror was then challenged peremptorily and excused.

The defendant had left several peremptory challenges to be exercised when the jury was completed. The opinion states the remaining facts.

Affirmed.

Mr. P. L. Williams and Mr. Ben. Sheeks, for appellant.

Mr. S. R. Thurman, Mr. W. H. Dickson and Mr. C. S. Varian, for respondent.

POWERS, J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

POWERS, J.:

The defendant was indicted for the murder of John F. Turner. He has seemed to live a charmed life, for he has been tried four times, each time convicted of murder in the first degree and sentenced to death, and three times he has been granted new trials. The case is now here for a review of the fourth trial. The record, although a long one, is remarkably free from error. The defendant has been defended by able counsel appointed by the court, and all his rights appear to have been carefully guarded.

1. The first point made, and which is urged why a new trial should be granted, is that three of the jurors were not qualified to sit. We are of the opinion that the jurors were competent. The opinions that they had formed were not such as would disqualify them under our statute: Laws 1884, p. 124, amending par. 244, Laws 1878. Besides in no challenge made for implied bias was any one of the nine grounds of challenge for implied bias pointed out to the court, as being that upon which the defendant relied. The challenges were general. The court, therefore, properly disregarded the challenge: Laws 1878, par. 242; People v. Hardin, 37 Cal. 258; People v. Dick, 37 Cal. 277; People v. McGunkle, 41 Cal. 429; People v. Walsh, 43 Cal. 447; Laws 1884. p. 124. Challenges for actual bias cannot be reviewed: Laws 1878, par. 309. Another and a perfect answer to the point raised is, that of the three jurors challenged two were not sworn. One was challenged peremptorily by the defendant, and one by the people. Whether, therefore, the challenges were properly denied or not, they did not sit as jurors, the defendant was not prejudiced by the ruling: Conway v. Clinton, 1 Utah 215; Mims v. The State of Ohio, State R., 221. The record shows that when the jury was sworn, the defendant still had three peremptory challenges remaining to him. Had he chosen he could have challenged the juror peremptorily when he challenged for cause. Until he had exhausted his peremptory challenges he could not complain. See dissenting opinion Boreman, J., Conway v. Clinton, 1 Utah 215; Fish v. State, 6 Mo. 426; Whittaker v. Carter, 4 Iredell 461, 41 Cal. 429.

2. The blow, which caused the death of the deceased, was inflicted upon the left side of the head, crushing the jaw and extending upwards and backwards, completely crushing through the skull. Dr. J. M. Benedict, after describing the injury minutely as it appeared to him upon post mortem examination, and after having stated that the injury was apparently inflicted with some blunt instrument, was asked the following questions:

Q. From what you have observed as the result of your examination, were you able to form an intelligent opinion as to the direction from which the blow was delivered?

To this question the counsel, for defendant, objected; that it was not a question for an expert, but a matter in which a jury or ordinary man can judge. Objection overruled and exception allowed.

A. Yes, sir.

Q. As a result of your examination? Objected to for the same reason as last above stated. Objection overruled and exception taken.

A. Yes, sir; I did form an opinion.

Q. What was your opinion? Objected to by the defendant's counsel on the same grounds as before stated, as being a question that may be answered as well by the jury. The jury may get at it as well by the facts as by the testimony of an expert. It is incompetent. Objection overruled and defendant's counsel excepted.

A. My opinion is that the blow was delivered from behind and above the head of the person struck, and from the left towards the right.

Defendant's counsel moved to strike out that part of the answer which stated that the blow was struck from the left side toward the right as not being a matter upon which an expert can give an opinion, being a matter which should be left to the jury, and not being an opinion for a physician or a matter upon which a physician can give an opinion. The motion was denied and an exception taken.

On the following morning Mr. Varian, on behalf of the prosecution, said:

"You Honor, we ask to have stricken from the record and the jury instructed to disregard it, the evidence given by Dr. Benedict, yesterday, relative to his opinion in regard to the direction from which the blow was delivered."

Counsel for defendant stated that the defense did not object to the motion being granted, but desired that the record should show that it was on the following morning that the application was made. The reporter then read the evidence and the court stated, "the jury will understand that this is stricken out and will not regard it at all." There was no evidence in the case showing the defendant to be a left handed man.

The defense urge that it was error to admit the testimony objected to and that the error was not cured by striking it out. That the jury considered the testimony over night and that the picture was fixed in their minds of the deceased seated, unconscious of harm, and the defendant, who is shown to be a left handed man, standing behind him and dealing the fatal blow from the left toward the right.

The argument advanced upon this point has three answers.

1. We think the testimony admissible. The exception to the general rule that witnesses cannot give opinions is not confined to evidence of experts testifying on subjects requiring special knowledge, skill or learning; but includes the evidence of common observers testifying to the results of their observations made at the time, in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury. Such evidence has been said to be competent from necessity, on the same ground as the testimony of experts, as...