State v. Coella

Citation28 P. 28,3 Wash. 99
PartiesSTATE v. COELLA.
Decision Date13 November 1891
CourtUnited States State Supreme Court of Washington

Appeal from superior court, Jefferson county; MORRIS B. SACHS Judge.

Dominico Coella was indicted and convicted of murder in first degree and he appeals. Reversed.

HOYT J., dissenting.

John Fairfield, Daniel kelleher, and G. Meade Emory, for appellant.

R. E. Moody, Pros. Atty., for the State.

SCOTT, J.

Defendant was convicted of murder in the first degree, for the killing of one John Deletis, and was sentenced to be hanged. He appealed the case, and seeks a reversal for various reasons among which are the following: That error was committed in the selection of the jury which tried him. After all of the defendant's peremptory challenges were exhausted, one E T. Biggs was called as a juror, and, in answer to questions put to him, he testified: "I reside in Port Townsend. Was acquainted with deceased. He was in my employ. Heard and read of case in newspaper. Was so horrified at the murder that it made me sick. Have formed and expressed an opinion which would require evidence to remove. Would try the case on the evidence and the law." This juror was challenged for cause by the defendant, which the court overruled, and an exception was taken. The challenge should have been granted. In a civil action between Deletis and defendant, Biggs would have been disqualified as a juror for implied bias, under Code, § 212, he and Deletis standing in the relation of master and servant; and while, of course, the deceased could not be a party to the prosecution, yet, for the purpose of impaneling a jury, he should be considered as an adverse party to the defendant. If the feelings supposed to be engendered by this relationship, or the influence that it might exert, are grounds of disqualification in a civil cause, it goes without saying that the reasons apply with much more force in a case like this. Code, § 1078, provides that the law relating to the drawing, retaining, and selection of jurors in civil cases shall apply to criminal cases as well.

The challenge should have been allowed, also, upon the ground of actual bias. Biggs' testimony is hereinbefore given in full as it appears in the record. He did not testify that he could disregard the opinion he had formed, and his statement that he would try the case upon the evidence and the law does not amount to this. His examination, apparently, was hasty and insufficient, and his testimony is very unsatisfactory to show his ability to give the defendant a fair and impartial trial, nor is it stated in the record that the court found that he could do so, although we might be bound to presume this from the fact that the judge allowed him to sit as a juror. It was contended, however, that the juror's own opinion as to his fitness determined his qualification in this particular. Code, §§ 211, 213, Civil Prac. Act, read as follows: "Sec. 211. Particular causes of challenge are of two kinds: (1) For such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this Code as 'implied bias;' (2) for the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the trier, in the exercise of a sound discretion, that he cannot try the issues impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as 'actual bias."' "Sec. 213. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section two hundred and eleven; but on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon 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." And section 1082, Crim. Prac. Act, provides that "challenges for cause shall be allowed for such cause as the court may, in its discretion, deem sufficient, having reference to the causes of challenge prescribed in civil cases, as far as they may be applicable, and to the substantial rights of the defendant." We are not called upon, in this case, to decide whether we would go into the question of fact to determine a juror's competency in this particular, where the judge finds that such juror could try the issue between the state and the defendant impartially, and where there is evidence which tends to support such a finding, for in this instance there was no testimony upon which the judge could so find. From the juror's own statement it appears that he entered upon the trial with a fixed opinion which he did not even say he could disregard. True, he said he would try the case upon the law and the evidence, but the only reasonable interpretation that can be given to his testimony under the circumstances is that he would, to some extent, be influenced by his opinion already formed. Had the juror testified that he could give the defendant a fair trial, the judge, of course, would not be bound thereby to find accordingly, and certainly ought not to do so if it should appear to him otherwise from all the evidence offered. He should attach such weight only as he should deem proper, under all the circumstances, to such an opinion of the juror. A statement by a juror, however, that he could not try the issue impartially, would be entitled to much greater weight, it not required to be taken as conclusive.

One Gabrielle Monard was called and examined as a witness for the prosecution. Upon cross-examination she testified that she was a married woman, whereupon defendant's attorney asked her a further question, as to whether she was not a prostitute. The prosecuting attorney objected to this question, which objection the court sustained, and an exception was taken. This was error also. The witness could have refused to answer the question upon the ground that it would tend to criminate her, as she could not be compelled to answer questions when such answers would furnish evidence to convict her of a criminal offense; but the law is well settled that this was a personal privilege which the witness need not have availed herself of unless she desired to do so. Otherwise the question was competent, its office being to bring out a fact which would degrade the witness, thereby affecting her credibility. If she chose to answer and admit, if such was the fact, that she had wantonly violated the restraints and passed outside the limits which religion, society, and the law have long established for woman's welfare and protection, her testimony would have been very seriously impaired. She could not have ruthlessly destroyed that quality upon which most other good qualities are dependent, and for which, above all others, a woman is reverenced and respected, and yet retain her credit for truthfulness unsmirched; but the fact that she could have declined to answer the question furnished no ground for an objection thereto by the prosecution. The record does not show that the witness claimed an exemption, and, in the absence thereof, the objection should have been overruled. However, the court should have informed her of her option in the premises, so that she might not, through ignorance, lose her right.

One John Miller was a witness for the prosecution, and testified as follows: "I have lived here about two years. I was a bar-tender. I don't do anything at present. I did work at the Louvre saloon. I know defendant. He used to come to the saloon now and then. In May or June defendant was in the saloon with five or six others, drinking. They were all Italians. I heard defendant say, 'If my partner don't pay me what he owes me I will take his life.' They were all talking and drinking. It was between 4 and 6 o'clock." Cross-examination: "I am a Spaniard. Was born at Montevideo. Left there about three years ago. I speak Spanish and English. I understand Italian a little. I don't read or write it. I first communicated what I heard in the saloon to Delaney, three or four days ago. He said if his partner did not pay him he would take his life. This was said in Italian. Coella had been drinking. I had talked with defendant a few times before. I heard him say he would take his partner's life. Question. Are you positive that Coella threatened to take some one's life and that he so stated in Italian? Answer. Yes: I am. Q. Will you please tell the jury what the word 'partner' is in the Italian language? A. I don't know. Q. Why did you say that the defendant made use of that word? A. I did not say so. I said that Coella said that unless some one paid him what he owed him he would take his life. I was drawing beer when he used these words. My back was turned to him. I knew he said it because I recognized his voice. I never heard him talk before that day when he was drunk. I often thought of what he said at the saloon, and one day, while in my room, I said to myself, 'My God! He said he would kill that man, and he did it."' The defendant objected to this last statement as to what the witness said to himself in his room, and moved the court to strike it out. The motion was denied, and an exception was taken. It is difficult to understand why the court refused to strike this part of the witness' testimony. It does not appear to have been called for, or given in response to any question asked by the defendant's attorney, and it was clearly incompetent, and of a most dangerous character. From the previous testimony of the witness there is some doubt as to whom Coella referred to when he said that unless some one paid him he would take his life, if he did...

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43 cases
  • State v. Smith, 85809–8.
    • United States
    • United States State Supreme Court of Washington
    • September 25, 2014
    ...exclude the jury and discuss the matter in open court. This practice dates back to the early days of our judiciary. See State v. Coella, 3 Wash. 99, 118, 28 P. 28 (1891) (holding that defendant did not have a right to have the jury present during argument over proposed jury instructions; ra......
  • State v. Smith
    • United States
    • United States State Supreme Court of Washington
    • September 25, 2014
    ...exclude the jury and discuss the matter in open court. This practice dates back to the early days of our judiciary. See State v. Coella, 3 Wash. 99, 118, 28 P. 28 (1891) (holding that defendant did not have a right to have the jury present during argument over proposed jury instructions; ra......
  • State v. Musser
    • United States
    • Supreme Court of Utah
    • December 16, 1946
    ......396, 13 S.E. 802. (Italics ours.). . . "One. who has formed an opinion which it will require evidence to. remove is disqualified for actual bias as a juror in a murder. trial, although he states that he will try the case on the. evidence and the law." State V. Coella, 3 Wash. 99, 28 P. 28; contra, Com. . V. McMillan, 144 Pa. 610, 22 A. 1029. . . "A. juror who has formed and expressed a positive opinion of the. guilt of a prisoner, and of certain specific and material. facts, although it is based solely on newspaper accounts, is. ......
  • State v. Boiko, 24534-9-III.
    • United States
    • Court of Appeals of Washington
    • April 26, 2007
    ......        ¶ 24 Our courts have held that the employer of the murder victim was disqualified as a juror on the ground of implied bias. State v. Coella, 3 Wash. 99, 103, 28 P. 28 (1891). In Coella, the court observed that in a civil trial between the victim and the defendant, the victim's employer would have been disqualified as a juror under the then-existing statute disqualifying a juror standing in the relation of master and servant to a party. ......
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