State v. Barrett
| Decision Date | 28 January 1889 |
| Citation | 41 N.W. 459,40 Minn. 65 |
| Parties | State of Minnesota v. Timothy Barrett |
| Court | Minnesota Supreme Court |
The defendant was indicted with his brother Peter Barrett in the district court for Hennepin county for the murder of Thomas Tollefson on July 27, 1887, in the city of Minneapolis. Defendant, having demanded it, was allowed a separate trial was tried before Lochren, J., and a jury, was convicted of the crime of murder in the first degree, and was sentenced to be hanged. Defendant appeals from the judgment and from an order refusing a new trial. The circumstances of the killing as shown by the testimony, are stated by the court in the next following case, State v. Barrett, infra, p 77.
The case is remanded for further proceedings.
W. W Erwin, Wm. H. Donahue, John T. Byrnes, and C. Wellington, for appellant.
Moses E. Clapp, Attorney General, H. W. Childs, F. F. Davis, and Robert Jamison, for the State.
The defendant, indicted for the crime of murder in the first degree, jointly with his brother Peter, having obtained a separate trial, was found guilty of the offence charged. From an order denying a new trial, and from the judgment, he appeals, alleging numerous errors of the trial court in impanelling a jury, and in admitting and excluding testimony. He also avers error of the court in refusing to certify of record its opinion that by reason of exceptional circumstances the penalty of death should not be awarded, error in refusing a new trial on the ground of newly-discovered evidence, in its judgment inflicting the sentence of death by hanging, and error in other matters, to which we deem it unnecessary to make further allusion.
Upon the preliminary examination of a proposed juror -- C. C. Wilson -- he was challenged by the defence for actual bias. To establish this condition of mind, wholly denied by Wilson, the mother of the accused testified to the use of certain language in conversation with her upon a business matter, but in reference to defendant and his brother. It further appeared that whatever was said was in presence of Wilson's clerk, whereupon the counsel for defendant demanded the process of the court, whereby the clerk could be compelled to attend and testify to the conversation. The court did not err in refusing this demand, nor in submitting the merits of the challenge to the triers. It is statutory, (Gen. St. 1878, c. 116, § 28,) that witnesses may be examined on either side upon this preliminary question, and by the ordinary rules of evidence, but the defendant had no absolute or unqualified right to ask, under the circumstances here presented, that all proceedings should be brought to a halt, the compulsory process of the court issued, and the clerk produced as a witness. The juror was of the regular panel, of which the defendant undoubtedly took notice. The expressions of ill-will are alleged to have been made to the mother, and she must have known that the clerk was present at the time. Had the counsel made a natural and simple inquiry upon this point, they would have been advised that he was in a position to overhear all that was said between the mother and the juror. They should have been prepared to submit the material testimony bearing upon the juror's competency, and it was not an abuse of discretion for the court to refuse to issue its process and suspend proceedings, that the desired witness might be had. It follows that the court was justified in directing the triers to pass upon the merits of the challenge for actual bias.
It is next contended that, while impanelling the jury, the court ruled erroneously upon the qualifications of certain persons of foreign birth and parentage, thereby compelling the defendant to use five of the peremptory challenges guarantied him by statute upon men who, for the reason stated, were incompetent to sit as jurors in the case. It is the fact that when the last juror, William Powles, was called to the box, defendant had exhausted his right to challenge without showing cause; that five of these challenges had been used upon men who were disqualified, unless there was competent evidence of the declaration of each to become a citizen of the United States; and that Powles was also of foreign birth and parentage. The state submits the proposition, however, that upon the voir dire of these persons it was shown by proper testimony that each had in due form declared such intention in conformity to the various acts of congress commonly known as the "Naturalization Laws," and was therefore, by virtue of Gen. St. 1878, c. 71, § 3, and c. 107, § 3, a qualified juror. It is the admissibility and sufficiency of such portions of the evidence on this point as was received and held ample, despite the protests of defendant's counsel, and against the objections then presented, which we are now called upon to determine. Most of the objections interposed during the voir dire were common to each case. In some the fact that the proposed juror had declared his intention to become a citizen was first established by parol, (as had been the foreign birth and parentage,) no objection thereto being made in behalf of the defendant. This was clearly sufficient; but the state went further and produced, as it did with each man whose general qualification was questioned, the original declaration of intention, or a copy of the same, properly certified by a clerk or deputy-clerk, and attested by the seal of a district court of this state. The original declarations so offered and received were found, with many others, in books kept among the files and records of the clerk of the court in which this case was being tried, and known as the "Declaration Books." They were identified by the clerk as the books in which could be found the original affidavits made before him or his deputies, by such aliens as had appeared and declared their intention to become citizens. The objections made to these originals were that they were not records of the court; that some were not attested by the clerk, but by persons who signed as deputies only, without the name of the clerk anywhere appearing; and that the seal of the court had been omitted from each. Section 2165, title 30, U.S. Rev. St. provides that an alien who wishes to become a citizen "shall declare on oath before * * * a court of record of any of the states having common-law jurisdiction, and a seal and clerk, * * * that it is his bona fide intention to become a citizen," etc. By an amendment (subdivision 6 of the same section) this declaration may be made before the clerk of any such court, and in all cases it is the duty of the clerk to record the proceedings. Gen. St. 1878, c. 8, § 259, authorizes the appointment by the clerk of one or more deputies, who are empowered to perform all the duties pertaining to the office. These appointments must be approved in writing by the judge, and the appointees are then the officers of the court. How said deputies should designate themselves upon papers, -- precisely what shall be their official appellation, -- the statute nowhere states. They act independently of the clerk, performing their duties personally; and we see no reason for holding that the deed should be described as that of the clerk, by his deputy. It would be absurd, as well as untrue, to describe the act of the deputy in administering an oath as that of the clerk, by his deputy.
In the case of juror Bergquist, the deputy described himself as "clerk," instead of "deputy;" and in Powles' case the deputy, Dickey, signed the jurat merely as "deputy." There was testimony, however, as to the official position of each on the days upon which they administered the oaths. But the appointments of these persons as deputy-clerks must have been approved by the judge who presided at the trial, or by a judge of the same court, and in either event judicial notice might well be taken of the signature and official character of each.
The clerk of the district court is not one of the officers who are by law specially required to have a seal. The court itself must have one; and in the attestation of papers, and upon all writs and process, the seal of the court, not that of the clerk, must be impressed. Gen. St. 1878, c. 22, § 2, and c. 64, §§ 12, 13.
The declaration of intention is an important step towards a formal judgment admitting an alien to full citizenship. Evidence of the declaration must be produced when final action is taken, and the judgment then rendered is of the same general validity as any other judgment of the same tribunal. The law requires the applicant to take the oath, and imposes upon the clerk the duty of properly certifying to the fact, and preserving a record thereof. As the applicant for citizenship has no supervision over the clerk, and cannot enforce obedience to the requirements of the law imposed upon that officer, it would be unjust to establish very strict or technical rules by which to determine, in a collateral proceeding, as this was, whether or not the disability arising from alienage has been removed. A record can be kept in no better manner than that adopted by the clerk who produced the books, and which is the customary method throughout the state. Blank declarations are bound in permanent book form, and used as occasion requires, until each blank is filled. This produces uniformity, neatness, convenience, and great safety. These originals are thus preserved in the best possible form, and are, as well as properly certified copies thereof, competent evidence of the recitals therein contained. In re Coleman, 15 Blatchf. 406, 6 F. Cas. 49. These remarks dispose of each of the alleged errors as to the selection of the jury.
Very few words are needed to dispose of the claim that the court should...
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