State v. Brown

• Citation: 28 Or. 147,41 P. 1042
• Parties: STATE v. BROWN. [1]
• Decision Date: 14 October 1895
• Court: Oregon Supreme Court

41 P. 1042

28 Or. 147

STATE v. BROWN. ^[1]

Supreme Court of Oregon

October 14, 1895

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

Samuel G. Brown was convicted of murder, and appeals. Affirmed.

W.R. Willis and A.M. Crawford, for appellant.

C.M Idleman, Atty. Gen., and L. Loughary, for the State.

MOORE J.

The defendant, having been indicted, tried for, and convicted of the crime of murder in the first degree, by shooting and killing William Alfred Kincaid, in Douglas county, moved for a new trial, which having been denied, he was sentenced to be hanged. From this judgment he appeals and assigns as error the denial of a motion to set aside the indictment; the refusal to sustain challenges submitted to trial jurors; the admission of improper evidence; and the giving and refusal of certain instructions. The record discloses that the defendant at the proper time submitted a motion to set aside the indictment, for the reason that it had not been found as required by law, and filed therewith the following affidavit: "I, A.M. Crawford, being duly sworn, say I am attorney for Samuel G. Brown, the above-named defendant, and that Theodore Andrews, who is now a member of the grand jury which found the indictment in this case against said defendant, Samuel G. Brown, has been summoned and served as a juror in a cause tried in this court within less than one year prior to the finding of the indictment against said defendant, Samuel G. Brown, and is, and was when this indictment was found, not competent to act as a juror." In disposing of this motion, the following order was made: "And the court, after hearing the arguments of counsel, and being fully advised in the premises, overrules and denies said motion,"--to which ruling an exception was saved. It is contended on behalf of the defendant that the grand juror was incompetent, and having challenged his competency and submitted evidence showing the want thereof, the court erred in not setting aside the indictment; while in behalf of the state it is insisted that his competency was a question of fact to be tried by the court, and as the record is silent as to the means adopted to reach the conclusion announced, it cannot be ascertained whether the court found the statements contained in the affidavit untrue or the motion insufficient in law. Without attempting to discuss the proposition contended for but treating the facts stated in the affidavit as admitted, we shall examine the grand juror's competency as a question of law. In the formation of the grand jury, the statute in general terms provides that from a list containing the names of 200 persons made from the last preceding assessment roll of the county by the county court, denominated the "Jury List" (Hill's Code, §§ 952-956), 31 names shall be drawn ( Id. § 958), from which number, so selected and in attendance upon the circuit court, the names of 7 shall be drawn, to act as grand jurors ( Id. § 943); and it is made the duty of the court, before accepting a person so drawn as a grand juror, to be satisfied that he is duly qualified to act as such ( Id. § 1233); and noechallenge is allowed to the panel from which the grand jury is drawn, or to an individual juror, unless when so made by the court for want of qualification ( Id. § 1234). Section 947 provides that: "A person is not competent to act as a juror unless he be,--1. A citizen of the United States; 2. A male inhabitant of the county in which he is returned and who has been an inhabitant thereof for the year next preceding the time he is drawn or called; 3. Over twenty-one years of age; 4. In the possession of his natural faculties and of sound mind. Nor is any person competent to act as a juror who has been convicted of any felony, or a misdemeanor involving moral turpitude. No person shall be summoned as a juror in any circuit court more than once in one year, and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within one year prior to the time of such challenge, or that he has been summoned from the bystanders or body of the county, and has served as a juror in any cause upon such summons within one year prior to the time of such challenge." The correct interpretation of this section must be decisive of the alleged error of which the defendant complains. The object of the legislative assembly in the passage of the latter part of this section was manifestly two-fold: First, to relieve a person from performing more than his share of jury duty; and, second, to prevent persons who make a business of sitting on juries, known as professionals, from being called to act as jurors in any cause before the circuit court at intervals of less than one year. The affidavit in support of the motion fails to show that Andrews did not possess all the qualifications prescribed by the statute, or that he had ever been convicted of any felony or misdemeanor involving moral turpitude; so that if he was disqualified to act as a grand juror, his incompetency must have existed by reason of the latter clause of the section under consideration. The phrase "in any cause," as used in this section, evidently means a civil or criminal action at issue and ready for trial in a circuit court of this state; and a person "called" to serve as a juror in any such cause would be subject to challenge if he had served as a juror in said court in the trial of any action within one year prior thereto, or had been summoned and attended as a juror within the same period, and a challenge upon that ground must be held sufficient. Wiseman v. Bruns (Neb.) 54 N.W. 858. But this provision cannot apply to one who has been drawn as a grand juror, because neither his duty nor oath requires him to be sworn "in any cause," nor is he required to try an issue of fact before the circuit court. The portion of the section above quoted providing that no person shall be summoned as a juror in any circuit court more than once in one year furnishes an exemption which would doubtless entitle the person drawn as a grand juror to be excused from serving as such upon his own application showing prior service within the year, if made before being sworn; but, as we view the statute, such prior service cannot be made a ground of challenge against him as a grand juror. Nor is this conclusion in contravention of the spirit or purpose of the statute, which is intended to provide impartial and disinterested jurors for the trial of causes; for a grand juror otherwise qualified may have a bias for or prejudice against a person charged with the commission of a crime, and might have entertained and freely expressed an opinion concerning the guilt or innocence of the accused, and yet under our statute neither his bias, prejudice, nor opinion would be a ground of challenge even by the court when impaneling the grand jury. The enumeration of the persons who, under the statute, are incompetent, and the insertion of the phrase "in any cause," lead us to believe that the challenge prescribed on account of the prior service of a juror is limited to persons called to be sworn as trial jurors, and has no application to members of the grand jury.

2. The court having denied challenges for actual bias submitted by the defendant to James Byron, John Price, L. Ash, John Hancock, L.L. Hurd, J.A. McCallister, J.B. Caulfield, and L.L. Marsters, who were called as jurors, he peremptorily challenged the first four, thereby exhausting his right to that class of challenges; and the others having been impaneled, it is contended that the court erred in denying the said challenges for cause. The evidence of the qualification of these persons to act as jurors, having been taken before the court and incorporated in the bill of exceptions, renders an examination of it necessary. James Byron on his voir dire said he had heard what purported to be a statement of the facts in the case, which he believed to be true, and from this he had formed an opinion as to the guilt or innocence of the accused; that if the facts were as he had heard them, he had a rather decided opinion, which it would require some evidence, at least, to remove. But when asked by the court if he thought he could lay aside any opinion he might have, and decide the case upon the evidence produced at the trial and the law as given him by the court, he answered, "Yes, sir." The questions propounded to the persons so challenged, and their answers thereto, are almost identical with the questions put to and the answers made by Mr. Byron, except that each had derived his information from the newspaper accounts of the homicide J.B. Caulfield and L.L. Marsters adding that they had heard others express opinions in reference to the merits of the case. Section 187, Hill's Code, provides that on the trial of a challenge for actual bias, "although it should appear that a juror challenged has formed or expressed an opinion upon the merits of the cause from what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied from all the circumstances that the juror cannot disregard such opinion, and try the issue impartially." In State v. Saunders, 14 Or. 300, 12 P. 441, Thayor, J., in speaking of the effect produced upon persons called to act as jurors by what they had read or heard of the merits of a case, said: "This depends much upon the credulity of the persons, and the tenacity with which they adhere to preconceived notions,"--so that, if it were not for what was elsewhere said in the opinion, the inference would follow that if a person never believed anything he read or heard, or was...