State v. Congdon

• Decision Date: 04 April 1884
• Citation: 14 R.I. 458
• Parties: STATE v. GEORGE W. CONGDON.
• Court: Rhode Island Supreme Court

14 R.I. 458

STATE v. GEORGE W. CONGDON.

Supreme Court of Rhode Island.

April 4, 1884

Two judges heard the demurrer to a plea in abatement of an indictment. The opinion of the court sustaining the demurrer was drawn up by one of them, assented to by the other, and delivered by the writer sitting alone. Both judges subsequently sat at the trial on a plea of not guilty to the indictment.

A statute provided that two judges should be a quorum for the trial of such cases, that the court should be always open, and that judgments made in one county might be certified to another.

Held, that there was no irregularity which could be reason for a new trial after conviction.

A petition for a new trial on the ground that one of the jurors was disqualified by a relationship of consanguinity is addressed to the discretion of the court.

Such a petition will not be granted when the relationship was by consanguinity in the sixth degree, was probably unknown to the juror, and was not shown to have injuriously affected the accused.

When a view is had in a criminal case the accused may waive his right to be present at the view. Such a waiver is presumed when he does not ask to be present and makes no objection in the course of the trial after the view; and when the view was allowed at the request of his counsel, who stated that the health of the accused precluded his attendance.

DEFENDANT'S petition for a new trial in the Court of Common Pleas.

After the proceedings reported, 14 R.I. 267, a new indictment was found in the Court of Common Pleas at its October Term, A. D 1883, charging the defendant with murder. After conviction of manslaughter under this indictment he filed a petition in the Supreme Court for a new trial for the reasons considered in the following opinion.

Samuel P. Colt, Attorney General, for plaintiff.

Willard Sayles & Adoniram J. Cushing, for defendant.

DURFEE C. J.

The first ground assigned for new trial is that the prisoner's plea in abatement was overruled by only one judge, whereas the statute requires two judges to make a quorum for the trial of indictments for crimes punishable by death or imprisonment for life. Pub. Stat. R.I. cap. 193, § 2. The plea was tried on demurrer before Justices Stiness and Tillinghast, and the affidavits show that, after deliberation and conference, they both concurred in the conclusion that it was bad. The opinion drawn up by Judge Tillinghast was approved by Judge Stiness. On the day to which the court had been adjourned, Judge Stiness being too ill to attend, Judge Tillinghast attended alone, and with the assent and approval of Judge Stiness announced the decision of the court, i. e. of both judges. If this were all that occurred it would be difficult to hold that the judgment was invalid in view of our statute; for our statute provides that the court shall be always open, except for certain purposes, among which the overruling of a plea in abatement is not included, and that all judgments, authorized by the provision, may be made in any county and transmitted for record to the county where the causes in which they are made are pending. But this is not all that occurred. The court met at a later day, both judges being present, and, with full knowledge of what had been done, proceeded with the cause. The prisoner was arraigned and pleaded not guilty, without objecting that the plea in abatement had not been overruled, and thereupon a jury was empanelled and the prisoner tried and convicted of manslaughter. Now if we regard what was done by Judge Tillinghast, in the absence of Judge Stiness, as a mere announcement of the opinion of the court, nevertheless when afterwards the court, both justices being present, proceeded with the cause, as if judgment on the plea in abatement were entered pursuant to such announcement, we think their action must be regarded as equivalent to a formal entry of judgment, and that if for any reason the record fails to show a judgment rendered by both justices, a defect nowhere alleged in the petition, the proper remedy is an amendment of the record, not the granting of a new trial. Indeed, even if there had never been any announcement of decision on the plea in abatement, we do not see how the prisoner could be entitled to a new trial on that account after having pleaded not guilty and gone to trial without objecting on that account, for he could not have been prejudiced in his trial to the jury by the non action of the court; and, unless the plea of not guilty would amount to a waiver of the plea in abatement, there would be nothing to prevent the court from now giving judgment overruling the latter plea, and thereupon, in the absence of any other objection, proceeding to sentence.

The second ground assigned for a new trial is, that one of the petit jurors who tried the indictment was related by consanguinity in the sixth degree to Wilcox, the person alleged to have been murdered, and that the prisoner was ignorant of the fact and had no opportunity to ascertain it in time to challenge him. The relationship is admitted, but the juror makes affidavit that he did not know of it until after the trial. The prisoner produces three counter affidavits. The affiant in one of them states that he had a conversation with the juror about three months before the trial in which the juror said that Wilcox was a relative of his, expressed a good deal of feeling, and declared that in his opinion the shooting...