Ray v. People

• Decision Date: 04 June 1917
• Docket Number: 8915.
• Citation: 167 P. 954,63 Colo. 376
• Parties: RAY v. PEOPLE.
• Court: Colorado Supreme Court

167 P. 954

63 Colo. 376

RAY v. PEOPLE.

No. 8915.

Supreme Court of Colorado, En Banc.

June 4, 1917

Rehearing Denied Oct. 8, 1917.

Error to District Court, Routt County; Hon. John T. Shumate, Judge.

May Ray was convicted of murder in the second degree, and brings error. Affirmed.

White C.J., and Hill and Teller, JJ., dissenting.

Arthur L. Wessels, E. W. Norlin, and Crump & Allen all of Denver, for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., and Charles Roach, Asst. Atty Gen for the People.

SCOTT J.

The plaintiff in error was convicted of the murder of her husband, James Ray. The verdict was murder in the second degree. The errors assigned which seem important to consider are: (1) Irregularities in the selection of the jury panel; (2) that the people attacked the character of the defendant in the first instance; (3) the admission of certain letters in evidence, purporting to be addressed to and received by the defendant; and (4) neglect or failure of the court to instruct as to manslaughter.

It is urged that certain jurors were, upon motion of the people, discharged for cause, and that by reason thereof the regular panel was exhausted and an open venire issued in order to complete the jury. The contention is that, but for the action of the court in erroneously sustaining these several challenges, the jury could have been selected without exhausting the regular panel, a right to which the defendant was entitled. There were nine such challenges sustained.

Juror Bergman testified that it would take stronger evidence to cause him to vote to inflict the death penalty upon a woman than a man; that his reason for this was that a woman is weaker. Upon examination by the court, the juror stated that as a general rule he would give the same consideration to the evidence in the case of the trial of a woman as in case of a man, but, in further answers, repeatedly said that it would require stronger evidence to convict in case of a woman than in that of a man.

Juror Cochran answered substantially to the same effect and further, that he would not put a man and a woman on the same basis in considering the question of guilt or innocence.

Juror Gill testified that it would take stronger evidence for him both to convict and to fix the death penalty in case of a woman than if a man was being tried.

Juror Earl testified that he had religious and conscientious scruples against the infliction of the death penalty, and that these would certainly prevent his inflicting the death penalty, even where the law and the evidence warranted.

Juror Brobeck said that he had conscientious scruples against infliction of the death penalty in case of a woman, and that he could not agree to such a verdict.

Juror Hitchins testified that it would take stronger evidence in case of conviction of a woman than in that of a man. He also testified that if the evidence established the guilt of the defendant, he would not hesitate to return a verdict of guilty, the same as in case of a man.

Juror Grimes testified repeatedly that he would not vote to inflict the death penalty under any circumstances.

Juror Dunkley testified that it would require stronger evidence for him to convict in case of a woman, and also that he believed that he could render a verdict according to the law and the evidence.

Juror Kemry testified substantially to the same effect and, in answer to a question by the court, said that he might convict a man on certain testimony and refuse to convict a woman on the same evidence.

In no case does it appear from the answers of the juror that he could and would lay aside his convictions so announced. It does not appear from the record whether or not it was necessary to excuse all of these jurors, or only one or more of them, in order to make it incumbent on the court to issue the open venire.

Counsel for defendant rely on Stratton v. People, 5 Colo. 276, to sustain this contention of prejudicial error. We do not so construe that decision. The rule laid down in that case, as we understand it, is that conscientious scruples against the infliction of the death penalty do not, in a capital case, necessarily disqualify the juror entertaining them, but if, notwithstanding his conscientious scruples, he will render a verdict in accordance with the law and the evidence, and if upon this point his answers have no uncertainty, this is all the law requires.

In the case of each of the jurors here, there seems to be so much of conflict in his answers as to leave an impression of uncertainty in the juror's mind, sufficient in our opinion, to justify the exercise of the sound discretion of the court in determining the competency of the juror.

The general rule of law in this respect is stated in 24 Cyc. 280, to be:

'Jurors to be competent must stand indifferent, having no bias or prejudice for or against either party. The juror must be indifferent both as to the person and the cause to be tried, and must be so at the time of the trial. Bias or prejudice may arise from such a variety of causes and depends so much upon the facts and circumstances of the particular cases that no definite rule can be laid down; but the true inquiry in all cases is whether the juror will act with entire impartiality, in deciding which, except in those cases where the law conclusively presumes bias, much be left to the discretion of the court, which, unless clearly abused, will not be interfered with.'

And in Salazar v. Taylor, 18 Colo. 538, 33 P. 369, we said:

'The overruling of a challenge to one of the jurors is assigned for error. The challenge was upon the ground of a previously formed opinion. In civil, as well as criminal actions, challenges for cause are triable by the court. The decision of the trial court upon such challenge is not ground for reversal by an appellate court unless the decision is manifestly erroneous and prejudicial to the party complaining of it. This rule is particularly applicable when the decision of the challenge depends upon oral evidence as in this case. From the evidence submitted, we cannot say that the trial court erred in concluding that the juror had not formed or expressed an unqualified opinion or belief as to the merits of the action.'

It was also said in Denver & S. P. R. Co. v. Driscoll, 12 Colo. 520, 21 P. 708, 13 Am.St.Rep. 243:

'We think the answers of Mr. Altman were such as to justify the court in sustaining the plaintiff's challenge to him; but, aside from this, when a full examination of a juror leaves the question of his competency doubtful, we should hesitate to interfere with the ruling of the trial court thereon.'

We think we can well say as to each of the jurors whose competency is urged in this case, as was said by this court in Independence Co. v. Kalkman, 156 P. 135, that:

'In such circumstances the question rests largely in the discretion of the trial court, and when his testimony is considered as a whole, we cannot agree that the court abused its discretion in this regard.'

There is no contention that any juror who sat on the trial was not in all respects fair and impartial, or was in any sence subjected to undue influence. We do not find prejudicial error in this respect.

As relates to the introduction of testimony tending to impeach the character of the defendant, this testimony with one exception concerns testimony as to statements and admissions of the defendant. The exception was the testimony of one witness to the effect that, prior to the marriage of defendant, she and a man named Albright held themselves out to the public as husband and wife, when in fact they were not. We think that the most...