State v. Asher

• Decision Date: 08 May 1922
• Docket Number: 5012.
• Citation: 206 P. 1091,63 Mont. 302
• Parties: STATE v. ASHER.
• Court: Montana Supreme Court

206 P. 1091

63 Mont. 302

STATE v. ASHER.

No. 5012.

Supreme Court of Montana

May 8, 1922

Commissioners' Opinion.

Appeal from District Court, Blaine County; Chas. A. Rose, Judge.

Harry H. Asher was convicted of burglary, and, from judgment of conviction and from order overruling motion for dismissal of the information and discharge of the defendant, the defendant appeals. Order and judgment affirmed.

R. V Bottomly, of Harlem, and Norris, Hurd & Rhoades, of Great Falls, for appellant.

W. D Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

POMEROY C. C.

The defendant was convicted of the crime of burglary and sentenced to the state prison. The minutes show that, upon the return of the verdict, the following occurred:

"The court then ordered the jury polled, and the clerk inquired of each juror if the verdict as read was his verdict. Whereupon each juror answered that the verdict as read was his verdict save and except Juror Mathias L. Haugen answered that the verdict as read was his verdict with the understanding that the sentence be suspended. The court thereupon asked the juror Mathias L. Haugen if the verdict as read was his verdict, and he answered, 'Yes.' Whereupon said jury was discharged from further consideration of said cause."

Following the passing of sentence, the defendant moved the dismissal of the information and his discharge, as follows:

"Comes now the defendant, Harry H. Asher, and moves the court that the information on file in this case may be dismissed as to the defendant Harry H. Asher, and that said Harry H. Asher be discharged, and that the judgment of conviction heretofore entered against him be set aside and held for naught, for the reason that the said defendant has been tried in the above-entitled court, before a jury, and that said jury was discharged without authority of law, before agreeing upon and returning a proper verdict or any verdict at all, and for the further reason that the said pretended verdict, on file in this case, is a nullity, in that the same was not rendered by a full panel of twelve jurors."

The motion was denied. The appeal is from the judgment and from the ruling on the motion.

There are but two specifications of error, viz.:

"(1) The court erred in receiving the verdict and discharging the jury, for the reason that the verdict was not a proper verdict or any verdict at all, in that it was concurred in by only eleven of the twelve jurors, whereas the law requires that a verdict in a felony case must be concurred in by the entire panel, and the answer of the juror Haugen indicated on the poll that he did not concur in the verdict, and not having concurred it was the duty of the court to send the jury back to the jury room for further deliberations. The jury, however, having been so dismissed by the court, the appellant may not be tried again, and therefore should have been discharged and the information dismissed.

(2) The verdict is entirely contrary to the evidence, in that the testimony on behalf of the respondent at the trial shows that the witnesses for the state were of such character that they were not entitled to any belief, and the story which they told was so improbable and so revolting to common decency and common justice that no weight should have been given to their testimony."

They will be considered in their order. The ruling on the motion was correct. The provisions of the Penal Code applicable are the following:

"When the jury agree upon a verdict, they must be brought into court and their names called by the clerk, and if all be present, their foreman must deliver their verdict to the court, who may, with their consent, in their presence, correct the same as to matters of form. The court must deliver the verdict to the clerk, who must file the same, and then read the same to the jury, and ask them if the verdict as recorded is their verdict; if all of the jury in the case of a felony, or two-thirds of their number in the case of a misdemeanor, assent thereto, they must be discharged." Section 12019, R. C. M. 1921.

"When a verdict is rendered, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation, and in case of misdemeanors if more than one-third so answer." Section 12032, R. C. M.

1921.

The case of Ponder v. State, 11 Ga.App. 60, 74 S.E. 715 relied upon by the defendant, is not in point. Upon the poll of the jurors in that case, two stated that, while they consented to the verdict, they did not do so freely and voluntarily. Nothing further was said by the jurors; while in this case, after the juror had first qualified his assent to the verdict, when the court thereupon asked him...