State v. Ekanger

• Decision Date: 21 October 1899
• Citation: 80 N.W. 482,8 N.D. 559
• Parties: STATE v. EKANGER.
• Court: North Dakota Supreme Court

8 N.D. 559

80 N.W. 482

STATE

v.EKANGER.

Supreme Court of North Dakota.

Oct. 21, 1899.

Syllabus by the Court.

1. Under chapter 39, Laws 1897, the fact that a party called as a juror states on his voir dire that he has an impression concerning the guilt or innocence of the accused, gathered from a general conversation with a person claiming to have some knowledge of the facts, and which it will require evidence to remove, does not disqualify the party as a juror, if it satisfactorily appears to the court that, notwithstanding such impression, the juror can and will, if accepted, fairly and impartially try the case on the testimony adduced and the charge of the court.

2. The decision of the trial court in such a case is entitled to great respect, and will be disturbed only in clear case of abuse.

3. The defendant, having gone upon the stand in his own behalf, might, on cross-examination, as affecting his credibility, be asked concerning collateral offenses; and, if he claimed immunity on the ground that his answers would tend to criminate him, he himself must make the claim under the sanctity of his oath.

4. Where the defendant was charged with keeping and maintaining a common nuisance, and the evidence tended to establish that the nuisance was kept in a building in which defendant and his wife resided as their home, and that the lease was in the name of the wife, and that she paid the rent, and kept and sold intoxicating liquors therein with the knowledge and consent of the defendant, it was proper to instruct the jury that, if they found such facts to exist, they should find the defendant guilty.

Appeal from district court, Walsh county; O. E. Sauter, Judge.

John Anderson Ekanger was convicted of keeping and maintaining a common nuisance, and appeals. Affirmed.De Puy & De Puy, for appellant. Jeff M. Myers, for the State.

BARTHOLOMEW, C. J.

This was a prosecution for a violation of the prohibition law, the particular offense charged being that of keeping and maintaining a common nuisance. From a judgment of imprisonment and fine the defendant appeals.

The first assignment of error relates to the ruling of the trial court in denying a challenge for actual bias made by the defendant to a juror who was called as a talesman after defendant had exhausted his peremptory challenges. The juror, on his voir dire, stated, in substance, that he had conversed about the case with a party who “used to go to the house,” and that such conversation left upon his mind an impression as to the guilt or innocence of the defendant, which impression he still entertained, and it would require evidence to remove it. He also said that this was a general conversation,-a “kind of a street rumor,”-and that, notwithstanding the impression that he entertained, if accepted as a juror in the case, he could and would “try this case solely upon the evidence produced in court, under the charge of the court, fairly and impartially.” The argument is that a juror who entertains an impression of the defendant's guilt, which it would require evidence to remove, is not an impartial juror, and every accused person has the constitutional right to be tried, and due process of law requires that he should be tried, by an impartial jury. Courts are very familiar with this argument. Formerly it was quite generally successful. The result was that as newspapers became more numerous, and reading more general, and the discussion of current topics more universal, courts found themselves forced to try important criminal cases before jurors too ignorant to read current news, and too ignorant to converse on current topics. To correct this evil, statutes more or less radical in their terms have been enacted in many of the states; their general purpose being to declare that the fact that a person called as a juror may have formed an opinion or received an impression concerning the case from conversations or newspaper reports shall not of itself disqualify the juror, even where it would require evidence to remove the impression or opinion. 12 Am. & Eng. Enc. Law (1st Ed.) p. 354, note. Nor do these enactments contravene the sixth amendment to the federal constitution, which guaranties trial by an impartial jury. Hopt v. People, 120 U. S. 430, 7 Sup. Ct. 614; Ex parte Spies, 123 U. S. 131, 8 Sup. Ct. 21. The decisions under these statutes are not uniform, as reference to the cases cited in the note supra will disclose. That is because the statutes are not uniform. Some are much more restricted than others. The constant tendency is to broaden the qualifications of jurors. Our own statute is among the latest. It is found in chapter 39, Laws 1897, and reads: “But no person shall be disqualified as a juror by reason of the fact that he may have heard from others or read in newspapers or public journals, any statement or statements with regard to the case to be submitted to the jury, if it shall appear to the satisfaction of the court that the impression remaining upon the mind of such person from the statements so communicated to him, will not prevent him from trying the case fairly and impartially.” This statute has not...