Shields v. State

Decision Date03 February 1898
Citation149 Ind. 395,49 N.E. 351
PartiesSHIELDS v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Blackford county; Edwin C. Vaughn, Judge.

Erastus Shields was convicted of manslaughter, and he appeals. Affirmed.

Cantwell, Cantwell & Simmons, for appellant. Wm. A. Ketcham, Atty. Gen., Merrill Moores, Jay A. Hindman, and E. E. Stephenson, for the State.

MONKS, J.

Appellant was convicted of the crime of manslaughter upon an indictment charging him with murder in the first degree, in the killing of James Young. The only error assigned calls in question the action of the court in overruling the motion for a new trial. One Harvey Ward, being called a juror, was examined upon oath as to his qualifications to serve as a juror. He stated that he had formed and expressed an opinion as to the guilt or innocence of the appellant; that his opinion was formed from talking with his neighbors about the case, and he had read something about it in the newspapers; and that all he had heard was rumor, and from that he had formed his opinion; and that it would require some evidence to remove the opinion. During the early part of the examination he said that he did not believe that he felt able to render a fair and impartial verdict in the case according to the law and evidence, notwithstanding the opinion he had formed. At a later period of his examination he said he believed, notwithstanding the opinion he had formed, that he could try the case, and render a fair and impartial verdict on the law and the evidence. Afterwards, during the latter part of the examination, it is claimed by appellant that the juror said that he guessed he did not understand the question in regard to his ability to render a fair and impartial verdict according to the law and the evidence, which he had answered in the affirmative. At the close of the examination, appellant challenged the juror, and stated as the ground of challenge “that he was not competent to serve upon said jury,” which objection was overruled, and said Ward was afterwards sworn as a juror. Appellant insists that this ruling of the court was prejudical error, although appellant had not exhausted his peremptory challenges, citing Brown v. State, 70 Ind. 576. This question was decided the other way by this court in Woods v. State, 134 Ind. 35, 33 N. E. 901; and in Siberry v. State, 47 N. E. 458, this court followed Woods v. State, supra; and Brown v. State, supra, and Fletcher v. Crist, 139 Ind. 121, 38 N. E. 472, were expressly overruled on this point. We are of the opinion, however, that no error was committed by the court in overruling appellant's challenge to said juror.

The statute provides 11 causes for challenge to persons called as jurors, one of which is that he has formed or expressed an opinion as to the guilt or innocence of the defendant. It is provided, however, that if the person called as a juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, if it appear from the examination of the juror that such opinion is founded upon reading newspapers, or upon rumors or hearsay, and not upon conversation with witnesses of the transaction or reading reports of their testimony, or hearing them testify, and the juror shall state upon oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial, and shall render such verdict, may, in its discretion, admit him as a juror to serve in such case. Burns' Rev. St. 1894, § 1862; Horner's Rev. St. 1897, § 1793. Under this section a question of fact was submitted to the trial court for its determination. It was shown that the opinion of the juror was based on rumors and newspaper accounts and hearsay. The juror said that, notwithstanding the opinion he had formed, he believed he could render a fair and impartial verdict upon the law and the evidence. There were some inconsistent answers to questions propounded. There was nothing to show any bias or feeling on the part of the juror against the appellant or his defense.

It was within the power of appellant, by further examination of the juror, to have made clear to any one examining the record whether the juror did or did not understand the question as claimed by appellant. This was not done, and the trial court determined that question. The answers of the juror raised questions for the decision of the court, who saw the juror, his appearance, demeanor, manner, and conduct, and heard his answers, his voice and its tone; and from these he was very much better able to determine the meaning of the juror than any one who merely reads the questions and answers after they are reduced to writing. What may appear uncertain or indefinite to one reading the record may have been plain and clear to one who heard the examination of the juror, and saw his manner and conduct during such examination. For this reason this court cannot interfere with the determination of the trial court of the question concerning the qualifications of jurors, merely because the answers of the juror are or seem to be inconsistent or incoherent. It was said by this court in Walker v. State, 102 Ind. 502, on page 505, 1 N. E. 856, on page 858: “Persons called to serve as jurors are often confused by the incisive and inquisitorial nature of the questions addressed to them touching their qualifications to act in that capacity, and, under a confusion thus induced, frequently give inconsistent and even incoherent answers. It is consequently both just and reasonable that the judge who presides at the trial should be permitted to exercise large discretion in determining the weight and relative importance given to such answers.” In Guetig v. State, 66 Ind. 94, which was decided before the enactment of the present statute, which gives the court a larger discretion, this court, in speaking of the influence of rumors and hearsay evidence upon the mind of a juror, said: “In the case before us, the qualified opinion of each juror objected to was formed upon hearsay evidence or newspaper reports, not upon facts known to the juror, and was evidently of a character that would yield readily to the contrary evidence. It does not seem probable to us that it could have affected the opinion of the juror with all the evidence before him in the case.” The trial court found, upon the evidence submitted, that the juror was impartial, and would render a fair and impartial verdict upon the law and the evidence, and, in its discretion, admitted him as a juror, and we cannot say that the trial court abused the discretion conferred by the statute.

The objection to the juror was properly overruled for another reason. Burns' Rev. St. 1894, § 1862 (Horner's Rev. St. 1897, § 1793), sets out 11 distinct and separate causes for challenge to any person called as a juror in any criminal trial, and provides that there shall be no other cause for challenge. The cause of challenge stated was general, and no one of the 11 statutory causes was pointed out to the court as being the one upon which appellant relied. It is well settled that all objections stated to the court must be specific and certain, and not general. Elliott, App. Proc. §§ 293, 769-771. To properly present any question as to the qualifications of the juror to sit in said cause, some one or more of the statutory causes should have been stated to the court. This much was due the trial court and the adverse party, and is necessary to the proper administration of justice. Elliott, App. Proc. §§ 769, 770; People v. Walsh, 43 Cal. 447;People v. Renfrow, 41 Cal. 37; People v. McGungill, Id. 429; People v. Reynolds, 16 Cal. 130.

The next specification for a new trial is that the court erred in permitting the state to cross-examine Dr. Robinson, a witness for appellant, as an expert, when he had not been examined as such by appellant. Dr. Robinson testified in chief that he had been practicing as a physician and surgeon 18 years; that, before the death of Young, he had attended him as a physician, and treated him for quinsy or tonsilitis. He testified as to his examination and medical treatment of Young, the nature of his sickness, his symptoms, the characteristics of quinsy or tonsilitis, what suppuration is, the prescription of chloral, the condition of Young's throat, the examination he made to determine whether Young was dead, the post mortem examination, the appearance and condition of the neck and throat of Young shown by the post mortem examination which he made at the request of the coroner, a description of the thorax, the meaning of congestion, a description of arterial and pulmonary blood and the difference between them, the pulmonary circulation, the condition of the heart with all its cavities, and whether the heart was of normal size, the condition of the stomach, the condition of the bowels, that they were healthy, the usual smell of a dead body, the color and condition of the throat, and that it had the color and characteristics of a healthy throat. The examination of Dr. Robinson by appellant shows clearly that he was examined, not only as to his knowledge of the facts of the case, but also as a medical expert. The state therefore was entitled to cross-examine him as such, not only concerning the facts testified in chief, but to test his skill and knowledge as an expert. Railway Co. v. Falvey, 104 Ind. 409, 414, 415, 417, 421, 3 N. E. 389, and 4 N. E. 908.

If said witness was unable to sustain himself on cross-examination, and the jury were convinced thereby that he was an ignoramus, as insisted by appellant, this would not deprive the state of its right to cross-examine him. If the cross-examination did convince the jury that said witness possessed no skill or knowledge as a physician, and he had not testified as an expert, as insisted by appellant, then appellant was not harmed, because such cross-examination...

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