State v. Brockhaus

• Citation: 43 A. 850,72 Conn. 109
• Court: Connecticut Supreme Court
• Decision Date: 12 July 1899
• Parties: STATE v. BROCKHAUS.

43 A. 850

72 Conn. 109

STATE

v. BROCKHAUS.

Supreme Court of Errors of Connecticut.

July 12, 1899.

Case reserved from superior court, Fairfield county; George W. Wheeler, Judge.

Frederick M. Brockhaus was convicted of murder, and moved for a new trial. From the order denying his motion, he appealed. Affirmed.

The petition was demurred to for formal defects, and this demurrer was overruled; but these questions were waived by the state's attorney in argument, and, in view of the opinion on the main question, are immaterial. The state's attorney then answered, and the defendant demurred to the answer. The parties then stipulated that the facts put in issue by the complaint and answer should be found by the court, and the case reserved for the advice of this court as to what judgment should be rendered upon the facts found. The finding of the court (George W. Wheeler, J.) states the following facts: "At the criminal term of the superior court holden at Bridgeport on the third Tuesday of February, 1899, upon an indictment presented to said court charging [Frederick] Max Brockhaus, the petitioner herein, with the murder of David S. Lambert, late of Wilton, in said county, deceased, the said petitioner was duly convicted, except as herein stated, by a petit jury, of murder in the first degree, on March 3, 1899, and on the 7th day of March, 1899, sentenced, in accordance with law, to be hanged on September 6, 1899, before the hour of sunrise on said day. One of the members of said jury was not of the age of 25 years, but became of the age of 24 years on May 22, 1898; * * * and this fact was not known by the petitioner or his counsel at the time of said trial, and was known by them for the first time on April 10, 1899. The petitioner, by his counsel, requested the court to permit him to examine said Juror on the voir dire, which request was granted, and said counsel did examine said juror so far as he desired, and had full opportunity at that time to inquire as to his qualifications to sit as a juror, and after such examination he accepted said juror, and did not challenge him for any cause. Said examination upon the voir dire was as follows: Philip Haugh (sworn) examined by Mr. Fessenden, state's attorney Q. You reside in Newtown, Mr. Haugh? A. Yes, sir. Q. How long have you lived there? Q. All my life. Q. Do you know anything about the merits of this case? A. No, sir. Q. Read or talked about it at all? A. No, sir. Q. Heard about it? A. No, sir. Q. Have you any opinion about it, one way or another? A. No, sir. Q. Know any reason why you cannot fairly try the prisoner? A. No, sir. Q. Any scruples against enforcing the death penalty? A. No, sir. Examined by Mr. Chamberlain: Q. Did you read any newspaper account of the Willis trial? A. I don't believe I have. Q. You know absolutely nothing about it? A. No, sir. Q. Ever served in a criminal trial before? A. No, sir. Mr. Fessenden: No objection upon the part of the state. Mr. Chamberlain: No objection. The Court: Accepted.—ninth juror.' The petition herein was not filed in court until the 11th day of April, 1899. No motion in arrest of judgment has been made by the petitioner in this case. Said juror was not otherwise disqualified, except as herein stated."

John C. Chamberlain, for petitioner.

Samuel Fessenden, State's Atty., for the State.

HAMERSLEY, J. (after stating the facts). Had the defect complained of been known to the defendant before judgment, his proper remedy would have been by motion in arrest of judgment; being in ignorance of the defect at the time, he is entitled to present his claim by a petition for a new trial. Under our practice, motions in arrest of judgment for causes not apparent of record, and applications for new trial for such causes, are substantially of the same nature, and their determination is controlled by similar principles. Bank v. Leavens, 20 Conn. 87, 88. This rule is narrowed by the decision in Brown v. Congdon, 50 Conn. 302; but, in view of the just and solid reasons for the rule, which are clearly set forth in the dissenting opinion of Judges Loomis and Granger (page 311), we think the case must be overruled. A petition for a new trial is addressed to the discretion of the court before whom the trial took place. It must allege facts which show that substantial justice was not or may not have been done. It cannot rely on error merely technical. On the contrary, its very foundation is that a judgment technically valid is substantially unjust. Barber v. Brace, 3 Conn. 9, 15; Lester v. State, 11 Conn. 415, 418. The doctrine of these cases has been repeatedly affirmed. This law is the same for civil and criminal cases. In Lester v. State we applied the rule laid down to a case of attempt at murder, where the defendant had been sentenced to imprisonment for life; and in Hamlin v. State, 48 Conn. 92, 94, where the petitioner was under sentence of death, we held that the rule for civil and criminal cases is the same. The practice which permitted the use of the petition for new trial in criminal cases, and the statutes which have from time to time recognized and confirmed that practice, expressly provide that this procedure shall be used in the same manner and with the same effect as in civil causes. Very early in our history we wisely provided for those accused of crime the same rights of trial, the same remedies for unjust trial, controlled by the same law, as prevailed in all other judicial proceedings. This policy, both wise and humane, has remained unchanged.

In the case at bar, the only fact relied upon as a ground for a new trial is the fact that one of the jurors lacked some two months of being 25 years of age,—a fact unknown until after judgment. The verdict and judgment in every other respect were just and according to law. "An act concerning jurors," passed in 1895, says: "Section 1. All jurors shall be electors not less than twenty-five years of age, esteemed in their community as men of good character, approved integrity, sound judgment, and fair education." Pub. Acts 1895, p. 566. What is the effect of a failure to comply with this rule? Trial by jury involves some rule of practice or law regulating the selection of persons to act as jurors, the issue, service, and return of process for summoning them to court, their examination and impaneling for the trial of a cause, and their conduct while members of the panel. Any departure from the established rule is an error or defect; but if not taken advantage of at the time of occurrence, or not discovered at the time, it is a defect healed by verdict, unless it is made fatal by the plain provisions of law, or is of such a nature that it may have unjustly affected the result. Under the old English practice, statutes of jeofail were passed to check the tendency to impracticable technicality; and, by the words and intent of these statutes, irregularities as to the number, qualifications, and returns of the jurors were aided by verdict, and defects in convening or in the qualifications of jurors were aided by consent of parties. 3 Bac. Abr. 772, 777. This is in pursuance of a principle essential to the conduct of human affairs, which rests upon a self-evident rule of common sense, and has come to be regarded in modern times as axiomatic. The omission of a form, or transgression of a rule, proper to be observed in providing a jury, or in the course of a trial, of such a nature that no harm therefrom to the parties is possible, cannot render the result unjust. State v. Watkins, 9 Conn. 47, 51; Pettibone v. Phelps, 13 Conn. 445, 450.

As to the qualifications of jurors, there are some which may be called inherent. They are those necessary to impartial and honest action. A disqualification of this kind is ordinarily fatal, unless it is known to exist at the time of trial, and is then waived. The want of other qualifications directed by custom or statute for general reasons of policy, and which cannot substantially affect the capacity or impartiality of a juror, does not constitute a defect, unless discovered and taken advantage of before verdict. This seemingly underlies the distinction drawn at common law between challenges propter affectum and delictum, and challenges propter defectum. It furnishes the test whether the irregularity is one absolutely healed by verdict, or is one giving sufficient ground for new trial, unless known to and waived by the party complaining. Ownership of certain property, and limitations of age so long as the juror has legal capacity, are plainly qualifications that have little, if any, relation to the ability of a juror, and none to his honesty or impartiality. The want of such a qualification in a single juror cannot affect the...