Sellers v. People of State

• Decision Date: 31 December 1842
• Citation: 3 Scam. 412,4 Ill. 412,1843 WL 4047
• Parties: Robert Sellers, plaintiff in error,v.The People of the State of Illinois, defendants in error.
• Court: Illinois Supreme Court

3 Scam. 412

4 Ill. 412

1843 WL 4047 (Ill.)

Robert Sellers, plaintiff in error,

v.The People of the State of Illinois, defendants in error.

Supreme Court of Illinois.

December Term, 1842.

Error to Shelby.

Where a juror, a short time previous to the trial of a prisoner for murder, and on different occasions, said he believed the prisoner “would be hung; that he ought to be hung; that nothing could save him; that salt could not save him; and that there was no law to clear him;” and subsequently went to the jail, and told the prisoner that he ought not to be hung, and, if he were on the jury he should not be hung; but afterwards, when sworn on the trial, touching his competency as a juror, he stated that he had formed and expressed no opinion; and no objection being made to him, he was sworn on the jury, and the prisoner was convicted; a new trial was granted, on the ground of the incompetency of the juror. ^a

It has always been held, that if a juror prejudge a cause, and it is unknown to the failing party in time to challenge, it is a good cause for a new trial.

This cause was heard in the court below at the May term, 1842, before the Hon. Samuel H. Treat.

E. D. Baker and A. T. Bledsoe, for the plaintiff in error.

J. Lamborn, Attorney-General, for the defendants in error.

DOUGLASS, Justice, delivered the opinion of the court:

At the May term, 1842, the grand jury of Shelby county returned into court a bill of indictment against Robert Sellers, for the murder of James Rodman. The prisoner appeared, and pleaded to the indictment, and, a trial being had, was convicted, and sentenced to be executed on the 21st day of June, 1842. After verdict, and before sentence, the prisoner moved for a new trial, upon the ground that Alfred Howlett, one of the jurors, had expressed an opinion against the prisoner, previous to the trial, and, when examined, touching his competency as a juror, testified that he had formed and expressed no opinion in relation to his guilt or innocence. Upon the hearing of the motion for a new trial, various affidavits were read, as well on behalf of the prosecution, as the prisoner, all of which were embodied in the bill of exceptions.

Addison Moran states, “that previous to the trial of this cause, in conversation with said Howlett, on the subject of the guilt of Sellers, he heard said Howlett say that he believed said Sellers would be hung, and that he ought to be hung, and that nothing could save him; that salt could not save him.” This conversation occurred about three weeks before the trial.

Jacob Kellar states that “previous to the trial he heard said Howlett say that he believed said Sellers would be hung, and that there was no law to clear him.” This was within three weeks of the time of trial.

John D. Brewster states, that “in a conversation with said Howlett, on the same day he was summoned as a juror, this affiant told him he had better be careful, or the sheriff would summon him as a juror, and Howlett replied he was not afraid of that, as they could not make him serve on the jury; and from all Howlett said, the impression was left on the mind of this affiant that said Howlett had formed an opinion in relation to the guilt or innocence of Sellers, and that he could not be made to serve on the jury, on the trial of this cause.”

Robert Sellers, the prisoner, states “that he had not any knowledge, either directly or indirectly, of the fact that Alfred Howlett, one of the jurors, had expressed or formed any opinion, either for or against him, in relation to his guilt or innocence, under the indictment, or for any offense for which he has been tried, and that he has been informed, and believes, that said Howlett had formed and expressed an opinion; but he came in possession of such information only since his conviction.”

Anthony Thornton states “that before the jury in this case was impaneled, and during the examination of Alfred Howlett, on oath, touching his competency as a juror, said Howlett stated, on oath, as this affiant understood him, in answer to the general question in such cases, that he had not formed and expressed an opinion as to the guilt or innocence of the defendant, and that no challenge for cause was made in consequence of such statement. This affiant further says, that, as one of the counsel of the defendant, he did not know, nor had he heard, till since the trial of this case, that said Howlett had expressed an opinion as to the guilt or innocence of the defendant, nor does he believe that the other counsel for the defendant had any knowledge of such expression of opinion, till since the trial.” This is the substance of the affidavits presented on the part of the prisoner.

On behalf of the prosecution was read an affidavit of F. C. Thornton and thirteen others, stating “that said Howlett has always borne the character of an honest man, and a man of strict truth and veracity, and that, from their knowledge of his character, they should place the most implicit confidence in his statements made under oath.”

Alfred Doyle states “said Robert Sellers stated in his presence, on the evening of the 26th inst., that Alfred Howlett, one of the jurors who sat on the trial, had expressed to him, Sellers, before the trial came on, his opinion as to his, Sellers', case, that he ought not to be hung, and, if he was on the jury, he should not be hung.”

James Cutter states, that “since the making of an affidavit by Robert Sellers, who stands indicted in said court for the crime of murder (which said affidavit states that he, Sellers, had no knowledge, directly or indirectly, that Alfred Howlett, one of the jurors in the above case, had expressed or formed any opinion, either for or against him, in relation to his guilt or innocence, under the indictment), said Sellers had stated to him, that he wished to get the affidavit back, that he did not wish it to go before the court; that Mr. Howlett had made statements to him through the window, before he was impaneled upon said jury, as to what his opinion was.”

The foregoing affidavits contain all the facts upon which the motion for a new trial was predicted, and present the following questions for the determination of this court:

First, whether Howlett was a competent juror; and, secondly, if incompetent, whether that incompetency, under the peculiar circumstances of this case, entitles the prisoner to a new trial. In the case of Smith v. Eames, ¹ decided at the July term, 1841, this...