People v. Mol

• Decision Date: 04 October 1904
• Citation: 137 Mich. 692,100 N.W. 913
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MOL.

100 N.W. 913

137 Mich. 692

PEOPLE v. MOL.

Supreme Court of Michigan

October 4, 1904

Error to Superior Court of Grand Rapids; Richard L. Newnham, Judge.

James Mol was convicted of bribery, and he brings error. Reversed.

Grant J., dissenting in part.

Smedley & Corwin, for appellant.

Wm. B Brown, Pros. Atty., and Chas. E. Ward, Asst. Pros. Atty., for the People.

CARPENTER J.

Respondent was convicted in the superior court of Grand Rapids of the charge of corruptly accepting $300 to vote as an alderman is favor of the city of Grand Rapids entering into the same water contract which was before this court in People v Salsbury, 96 N.W. 936, and People v. McGarry, 99 N.W. 147. Six of the men who sat as jurors on respondent's trial had only a few days before assented to a verdict of guilt in the case of People v. Jacob P. Ellen. Respondent exhausted his peremptory challenges. He challenged these jurors for cause. The trial court overruled his challenge. Was this ruling error? The informations in the Ellen case and in this case, except in the name of the respondents, were exactly alike. The name of every witness who testified in this case was indorsed upon the information in the Ellen case. The principal witness in each case was Lant K. Salsbury. He gave substantially the same testimony in each case. In this case he testified to bribing Ellen. In the Ellen case it is to be inferred that he testified to bribing Mol. Most of his testimony and substantially all the corroborating testimony consists of the details of the conspiracy, admissible alike in each case. In that case it is to be inferred that he testified more particularly about Ellen, and in this case more particularly about Mol. The difference between the two cases, then consists in the particular application of substantially the same testimony to different defendants, together with the fact that in the Ellen case there is opposed to it the denial of Ellen, and in this case there is opposed to it the denial of Mol. Five of these jurors, in reply to questions on their voir dire, said they had formed no opinion of the guilt or innocence of respondent. One of them said: 'If the case is just, I have; if it is not, I have not.' Did the court err in deciding that these jurors were qualified?

If this decision is to be governed by common-law principles, the decision of the trial judge was correct. It was resolved by all the judges in the Regicide's Case, 5 How. St. Tr. 978, in the year 1660, 'that if several persons be indicted together in one indictment for one crime, in case some of them be found guilty by one jury, and afterwards some of the same jury be returned for trial of others in the same indictment, it is no challenge for those prisoners to say that those jurors have already given their verdict and found others guilty who are indicted in the same indictment for the same offense; for * * * in the law it is the several indictment against every one of them, and the crime is several, and one may be guilty and not another, and the jury are to give their verdict upon particular evidence against every several person, and therefore the finding of one guilty is no argument or presumption that those jurors will find another guilty.' In the trial of Peter Cook at the Old Bailey, before Lord Chief Justice Treby, in 1696 (13 How. St. Tr. 313), counsel for respondent said: 'Here are some persons returned upon this panel that were formerly jurors in a case that was tried for the same species of treason that this gentleman, the prisoner, is charged with in this indictment; and I think the witnesses at that trial did mention in their evidence my client as being present at those very consults about which they gave their evidence. These gentlemen gave credit to those witnesses and found the verdict against the person then accused. We humbly submit to your lordship and the court whether we may not for this cause challenge this person as not indifferent, it being for the same cause and consult that the other was tried for.' To this the Lord Chief Justice replied: 'Well, there is nothing in it.' These decisions, which have been followed by some courts in modern times (see U.S. v. Wilson, Baldw. 84, Fed. Cas. No. 16,730; Dew v. McDivitt, 31 Ohio St. 139; State v. Williams, 31 S.C. 238, 9 S.E. 853; Thomas v. State, 36 Tex. 315; Bowman v. State, 41 Tex. 417), were pronounced before there was any judicial acceptance of our modern conception of a jury as a tribunal which should dispose of a controversy solely on the testimony introduced before them. When they were made, while jurors heard testimony produced by the parties, their verdict was not, as we might infer from the rule in the Regicide's Case, based solely upon that testimony. They might, as is shown by the following authorities, in accordance with the ancient practice still in part existing, use in the decision of a controversy their private knowledge of facts, or, it seems, their private information concerning them. See Pollock & Maitland's History of Eng. Law, vol. 2, p. 622. In Bushell's Case (this case arose from an imprisonment of the jurors who had acquitted William Penn of a criminal charge), decided in 1670 (see 6 How. St. Tr. pp. 1010, 1011), the right of a court to fine and imprison a juror for rendering a verdict in favor of the defendant in a criminal case against the manifest testimony was judicially denied on the ground that 'the judge * * * can never know what evidence the jury have. * * * Being returned of the vicinage whence the cause of action ariseth, the law supposeth them thence to have sufficient knowledge to try the matter in issue, though no evidence were given on either side in court. * * * They may have evidence from their own personal knowledge by which they may be assured, and sometimes are, that what is deposed in court is absolutely false.' In the Case of Tutchin, 14 How. St. Tr., at page 1100, decided in 1704, the issue in the case was whether the defendant was the author of a certain libel. A person called as a juror stated that he had read the alleged libelous publication, and publicly disallowed them, and he did not doubt defendant was the author of them. The Attorney General answered: 'If this gentleman knows him to be the author of them, he is proper to be on the jury, for the jury are by law to be of the neighborhood of the place where the fact is alleged to be done, because they are presumed to know what is done there.' It is to be inferred that this argument was approved by Lord Chief Justice Holt, who presided at the trial.

As the juror at the common law was not compelled to render his verdict on the testimony given in court, it was no ground of challenge, as some courts have held (see People v Vermilyea, 7 Cow. 108), that he had knowledge that would prevent his rendering such a verdict. At the common law the challenges to jurors for affection or partiality were of two kinds: (1) 'For principal cause;' (2) 'to the favor.' A challenge is called principal 'because, if it founded on truth, it standeth sufficient of itself, without leaving anything to the conscience and discretion of the triors.' Co. Litt. 156b. Relationship to one of the parties or interest in the subject-matter of the litigation furnish illustrations of grounds for challenges for principal cause. Challenge to the favor (and the challenge under consideration is challenge to the favor, Stephens v. People, 38 Mich. 739) 'is when the party alleges any such exception against one or more of the jurors, which is not forthwith sufficient upon acknowledgment of the truth thereof, but rather arbitrable and considerable by the rest of the jurors.' State v. Sawtelle, 66 N.H. 508, 32 A. 831. 'It showeth causes of the favor which must be left to the conscience and discretion of the triors, upon hearing their evidence, to find him favorable or not favorable.' Co. Litt. 157b. 'In this form of challenge probable circumstances of suspicion, such as great intimacy with one party, or strife or quarrels with the other, any acts or sayings indicating affection for one or malevolence towards the other, in short, anything tending to show a motive on the part of the juror to favor one party or wrong the other, may be alleged and proved.' State v. Sawtelle, supra. The question raised by this challenge was not that a juror had knowledge or opinions which would prevent his deciding the case according to the evidence, but it was that because of affection toward one party or of hatred toward the other, or because of some other similar motives, he would not decide the case according to the truth. This is illustrated by the following decisions: In 1429 (see 7 Hen. VII, 25, pl. 8), in an action of replevin, a juror was challenged 'for that he was favorable.' Babington, C. J., submitting the questions to the triors, said: 'Do you know, triors, what is meant by favorable? He is favorable who, whether the matter is true or false, will pass for one or the other. * * * But, if one has said twenty times that he will pass for the one or the other party, you will inquire upon your oath whether the cause is for the affection he has for the party, or for the knowledge he has of the matter in issue; and if it is for the affection he has for the party, then he is favorable, but otherwise he is not.' Said Newton, J., in a case decided in 1442, reported in 20 Hen. VII, 40, pl. 9 (see State v. Sawtelle, supra): 'And if a juror say that he will pass for the plaintiff, his saying is no cause for withdrawing him, unless it is found by the triors or by the court that he said this more for favor than for the truth of the matter.' In Rex v. Edmonds, 4 B. & Ald. 490, decided in 1821, Abbot, C.J., speaking for the court, said: 'The language of Mr. Sargeant Hawkins upon that subject...