State v. Chambers

• Decision Date: 19 February 1904
• Citation: 9 Idaho 673,75 P. 274
• Parties: STATE v. CHAMBERS
• Court: Idaho Supreme Court

75 P. 274

9 Idaho 673

STATE v. CHAMBERS

Supreme Court of Idaho

February 19, 1904

CRIMINAL LAW-READING INFORMATION AND STATING PLEA TO JURY-URGING JURY TO AGREE-PREJUDICIAL ERROR.

1. Under section 7855, Revised Statutes, which provides that where the indictment or information charges a felony "the clerk must read it, and state the plea of the defendant to the jury," a failure to read the indictment or information, and state the plea by the clerk or any officer of the court is reversible error.

2. On trial of a felony case, the jury, after having deliberated for considerable time, returned into court for further instructions, and thereupon the court gave them some directions and sent them back to the juryroom. On the following day they came into court and announced that they could not agree, whereupon the court reminded them of the great expense of such a trial to the county, and admonished them to meet in a proper spirit of inquiry and investigation and try to get together and not to have too much pride in their individual opinions, and that it did not seem to him that the case involved a great deal of difficulty, and then sent them back to the juryroom. After again remaining out for some time, they returned into court and announced that they could not agree, whereupon the court again admonished them and reiterated practically all he had before said to them and told them that they should accommodate themselves to the condition of affairs and come to an agreement, and that the administration of justice demanded it, and thereafter the jury returned and brought in a verdict of guilty. Held, that such instructions, admonitions, and urging by the judge were reversible error.

3. Held, further, that a verdict returned under such circumstances does not represent the fair and deliberate judgment of the jury.

(Syllabus by the court.)

APPEAL from District Court in and for Elmore County. Honorable Lyttleton Price, Judge.

Defendant was convicted of the crime of forgery, and from the judgment and an order denying his motion for a new trial, he appeals. Reversed.

Reversed, and a new trial granted.

E. M. Wolfe, for Appellant, cites no authorities on the points decided not found in the opinion.

John A. Bagley, Attorney General, for the State.

The information was not read to the jury by the clerk or any other person, and the jury was not informed of the plea of the defendant. No objection was made by the defendant to this irregularity at the time of the commencement of the trial or at any time during the trial. It does not appear that any injury resulted to the defendant by this irregularity. After the jury were impaneled, and before the introduction of any testimony, the county attorney made a statement of the case to the jury. At the close of the testimony for the state the defendant's attorney made an opening statement of their defense. This is not such an irregularity as will warrant this court in ordering a new trial. (Territory v. Hargrave, 1 Ariz. 95, 25 P. 475; Osgood v. State, 64 Wis. 472, 25 N.W. 529; People v. Sprague, 53 Cal. 491.) Urging the jury orally to agree: No objection was made by the defendant to the action of the court at the time and no exceptions were taken or assigned. There are no objections made or exceptions saved in the record as to this matter. The trial judge is vested with much discretion in the conduct of judicial proceedings. (Hannon v. Hallifax, 89 N.C. 123.) He may properly admonish the jury as to the desirability and importance of agreeing on a verdict, and may urge them to make every effort to do so, consistent with their conscience. (11 Ency. of Pl. & Pr. 384, cases cited in note 3; Commonwealth v. Kelley, 165 Mass. 175, 42 N.E. 573; Kelly v. Emery, 75 Mich. 147, 42 N.W. 795; Jackson v. State, 91 Wis. 253, 64 N.W. 838; Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91, 60 Ark. 45, 28 S.W. 792; People v. Stock, 1 Idaho 218; State v. Dudoussat, 47 La. Ann. 977, 17 So. 685; Odette v. State, 90 Wis. 258, 62 N.W. 1054.) He may advise jurors to lay aside their pride of judgment (Frandsen v. Chicago, 36 Iowa 378; Warlick v. Plonk, 103 N.C. 81, 9 S.E. 190), and not to adhere to an opinion, regardless of what the other jurors say, merely through stubbornness (Jackson v. State, 91 Wis. 253, 64 N.W. 838; Odette v. State, 90 Wis. 258, 62 N.W. 1054); to examine any existing difference in a spirit of fairness and candor (Frandsen v. Chicago, 36 Iowa 372), and to reason together and talk over and harmonize them if this be possible. (Jackson v. State, 91 Wis. 253, 64 N.W. 838; Odette v. State, 90 Wis. 258, 62 N.W. 1054.) And the court may urge as reason for agreeing on a verdict the time and expense involved in a trial, and the time and expense which a new trial will entail. (State v. Gorman, 67 Vt. 371, 31 A. 845; Pierce v. Rehsuff, 35 Mich. 53; Kelly v. Emery, 75 Mich. 147, 42 N.W. 795; Allen v. Woodson, 50 Ga. 53.) As to the form of admonition as has been given and approved, see the following: Allen v. Woodson, 50 Ga. 63; Nile v. Sprague, 13 Iowa 198; Parker v. Georgia, 83 Ga. 539, 10 S.E. 239; Cranston v. New York Central, 103 N.Y. 614, 9 N.E. 500; Ahearn v. Mann, 60 N.H. 472; Whitman v. Morey, 63 N.H. 448, 2 A. 899.

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STOCKSLAGER, J.

The defendant in this case was convicted in the district court in and for Elmore county, upon the charge of forgery, and has appealed from the judgment and from an order denying his motion for a new trial. The first error complained of is founded upon the following statement contained in the bill of exceptions: "Before the taking of testimony neither the clerk nor any other officer of the court read the information to the jury or informed it of the plea of defendant thereto, and the same was not done at any time." It is contended by counsel for defendant that under the provisions of section 7855, Revised Statutes, a failure to read the information to the jury and state the plea of the defendant before proceeding to the introduction of evidence was error. It is insisted that a failure to read to the jury the complaint or information made by the state against the defendant and the defendant's answer or reply thereto, which is designated by the statute the plea, left the jury without any issue to try, and that a verdict returned under those conditions should be set aside. Section 7855 provides as follows: "Section 7855. The jury having been impaneled and sworn, the trial must proceed in the following order: 1. If the indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with."

It will be observed that the foregoing statute provides that in felony cases this procedure must be followed, and that in all other cases--that is, misdemeanor cases--it may be dispensed with.

The attorney general argues on behalf of the state that a failure to comply with this statute in such cases is a mere irregularity which will not warrant the granting of a new trial, and in support thereof cites Territory v. Hargrave, 1 Ariz. 95, 25 P. 475; Osgood v. State, 64 Wis. 472, 25 N.W. 529, and People v. Sprague, 53 Cal. 491.

We do not think the Arizona case is in point, for the reason that the record was there silent as to whether or not the information had been read and the plea stated to the jury. The court disposed of that point by saying: "In the absence of such statement, the presumption is that the indictment was read to the jury in the ordinary way. Legal presumption is always in favor of judicial proceedings until the contrary appears."

The Wisconsin case seems to support the position of the attorney general, but the question is summarily disposed of by the court without giving any reason for the ruling and without citing the statute upon which the contention was based. We are therefore unable to ascertain whether that decision rested upon a statute similar to ours.

The California case does not seem to support the position of the attorney general, for the reason that it appeared by the record there that the jury were repeatedly informed of the substance of the indictment and the plea of the defendant in the course of impaneling the jury and the progress of the trial as well as in the opening statement of the district attorney. The court there said: "It appears from the bill of exceptions, however, that during the impaneling of the jury the substance of the indictment and plea were many times repeated; that in opening the case to the jury the district attorney stated the substance of the indictment and also defendant's plea thereto; that in the charge of the court the substance of the indictment and plea were again mentioned; and that the defendant made no objection to proceeding with the trial by reason of the failure of the clerk to read the indictment or to state the plea, nor in any way referred to the omission until after the verdict had been received and entered on the minutes, and the jury polled at defendant's request."

The identical question here presented was before the court of appeals of the state of Kentucky twice during the year 1901--Farris v. Commonwealth, 111 Ky. 236, 63 S.W 615, and Hendrickson v. Commonwealth 23 Ky. L. Rep. 1191, 64 S.W. 954. In the former case the court said: "The bill of exceptions shows that the case was called for trial, and commonwealth and defendant announced 'Ready.' Then the jury was impaneled and sworn. The indictment was not read by the commonwealth's attorney, or the clerk of the court, or anyone else, before the trial began, or at any time during its progress. It is insisted that the case should be reversed for this reason. Section 219, Criminal Code...