State v. Humphrey

• Decision Date: 31 December 1912
• Citation: 63 Or. 540,128 P. 824
• Parties: STATE v. HUMPHREY et al.
• Court: Oregon Supreme Court

128 P. 824

63 Or. 540

STATE v. HUMPHREY et al.

Supreme Court of Oregon

December 31, 1912

Appeal from Circuit Court, Benton County; J.W. Hamilton, Judge.

George Humphrey and Charles Humphrey were convicted of murder, and they appeal. Affirmed.

It is charged in the indictment here that: "The said George Humphrey and Charles Humphrey on the second day of June 1911, in the county of Benton and state of Oregon, then and there being, and then and there acting together, did then and there unlawfully, feloniously, purposely, and of deliberate and premeditated malice kill one Eliza Griffith, by then and there unlawfully, feloniously, purposely, and of deliberate and premeditated malice strangling her, the said Eliza Griffith, whereof the said Eliza Griffith then and there died, contrary to the statute. ***" A trial upon the general issue resulted in a verdict of guilty as charged, and from the consequent judgment the defendants have appealed p>Page Portland, on the brief), for appellants.

Edwin R. Bryson, of Eugene, and Arthur Clarke, of Corvallis (W.S McFadden, of Corvallis, on the brief), for respondent.

BURNETT, J.

Among others there were six jurors, including one John Slane, who were examined about their qualifications to sit in the trial. To each of the six the defendants interposed a challenge for cause, which was overruled. On this action of the court the defendants predicate their first assignment of error. The bill of exceptions reports only the testimony relating to these six jurors, and shows that five of them were challenged peremptorily by the defendants. These five peremptory challenges are the only ones that were used by the defendants so far as disclosed by the bill of exceptions. Mr. Slane was accepted by the court and served as a juror at the trial of the case, notwithstanding the defendants had challenged him for cause.

It is well settled that, although the court sitting in the trial of the cause may have erred in overruling a challenge for cause yet the error is cured by the exercise of a peremptory challenge against the juror in question. The right of peremptory challenge is conferred upon the defendant to use at his own discretion. Neither party has the right to the services of any particular juror. The law provides various means in the form of challenges to enable a party to exclude from the panel an objectionable juror, and this is the only method of preventing the use in every instance of the first 12 names drawn from the box as the trial jury. If a party chooses to use his peremptory challenges in this process of exclusion, he cannot complain if the court has erred in overruling his challenge for cause to a juror thus excused. This disposes adversely to the contention of the defendants of all questions raised as to the five jurors of the six mentioned, and granting that all of the five were in fact biased or prejudiced so as to disqualify them yet it does not affect the case because they did not serve on the jury.

It remains to consider the error asserted as to John Slane, who was one of the jury which convicted the defendants. The bill of exceptions presents a case where defendants had exhausted only five of their peremptory challenges when their objection for cause against Slane was overruled, and it does not show that the defendants ever used any of the remaining seven peremptory challenges allowed them by the statute. Some authorities hold that, if the court erred in overruling the challenge for cause, the defendant is not bound to cure the erroneous rulings of the court by using such challenges. Their doctrine is that a defendant has a right to have his challenges for cause tried agreeably to the rules of law, and that it is an invasion of his right when he is called upon to obviate the error at the expense of one or more of his peremptory challenges, although it does not exhaust his quota. People v. Bodine, 1 Denio (N.Y.) 281; Freeman v. People, 4 Denio (N.Y.) 9, 31, 47 Am.Dec. 216; Brown v. State, 57 Miss. 424; 10 Cent.Law J. 376; North Chicago Elec. Ry. Co. v. Moosman, 82 Ill.App. 172.

On the other hand, by far the larger number of authorities hold that, until a defendant's peremptory challenges are exhausted, he is not in a position to complain of the action of the court in overruling his challenge for cause to any particular juror who afterwards served on the panel. These later cases seem to teach that the law has provided not only challenges for cause, but also those peremptory to enable the defendant to protect his right to a fair and impartial jury; that, unless he avails himself of all those privileges whenever the occasion arises, he is in a sense leading the court into error which he might have cured if he had been so disposed, and not having obviated the error when he could he is in no position to complain. State v. Elliott, 45 Iowa, 486; State v. Davis, 41 Iowa, 311; Barnes v. Newton, 46 Iowa, 567; State v. McQuaige, 5 S.C. 429; St. Louis Ry. Co. v. Lux, 63 Ill. 523; Bowman v. State, 41 Tex. 417; Tuttle v. State, 6 Tex.App. 556; Sharp v. State, 6 Tex.App. 650; McKinney v. State, 8 Tex.App. 626; Tooney v. State, 8 Tex.App. 452; Krebs v. State, 8 Tex.App. 1; Grissom v. State, 8 Tex.App. 386; Palmer v. People, 4 Neb. 68; State v. Gill, 14 S.C. 410; Preswood v. State, 3 Heisk. (Tenn.) 468; Haggard v. Petterson, 107 Iowa, 417, 78 N.W. 53; Pool v. M. M.Ins. Co., 94 Wis. 447, 69 N.W. 65; Commonwealth v. Fry, 198 Pa. 379, 48 A. 257; Yecker v. San Antonio Tract. Co., 33 Tex.Civ.App. 239, 76 S.W. 780. On the state of the record touching the number of peremptory challenges used and those unemployed when the jury was finally completed, the weight of authority on this question would decide the contention of the defendants against them in respect to the jury.

We do not, however, rest the decision of this cause as to the juror Slane upon the basis of unused peremptory challenges. That juror was a farmer who had lived in the state about five years and in the county of Benton about sixteen months. He was not acquainted with the deceased or the defendants, or with any person in the neighborhood where the homicide occurred. He had heard some reports of the inquest held over the body of the deceased, and also some statements about the confessions attributed to the defendants. He testified that he had a decision in one way conditioned on the truth of what he had heard. He responded to a question by the defendants' counsel that his mind was in such a condition that he could give a fair and impartial consideration to the testimony regarding the facts as to whether or not the alleged confessions were freely and voluntarily made. He said he had no fixed opinion in the case, and would have to hear the evidence before reaching a conclusion. The counsel for the defendants very searchingly and at much length examined him, propounding various hypothetical questions calling for his opinion based thereon. These questions were very much involved in their terms, and contained various fine shades of distinction, and the answers to some of them indicated that the juror might find the defendant guilty of murder in the first degree without the state having proven deliberation and premeditation. The judge, however, explained to him that jurors are subject to the direction of the court as to the law of the case, and that it would be necessary as a matter of law for the state to prove beyond a reasonable doubt that there was deliberation and premeditation on part of the defendants before they could be found guilty of murder in the first degree. The juror explained on his part that he did not clearly understand the questions propounded by the defendants' counsel, but that in a trial of the case he would take the law from the court, weigh the evidence fairly under his oath, and render a verdict accordingly, without prejudice. He was examined at great length also by the state on the challenge for cause interposed by the defendant, and the court overruled the challenge. A careful reading of all the testimony on his voir dire impresses us with the belief that the court committed no error in accepting him as a juror.

The disqualification urged by the defendants against Mr. Slane is defined by our Code as: "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 issue impartially and without prejudice to the substantial rights of the party challenging and which is known in this Code as actual bias." L.O.L. § 121, subd. 2.Respecting the trial of a challenge for actual bias, section 123, L. O.L provides that: "Although it should appear that the 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 his opinion and try the issue impartially." Any intelligent thinking man will form some opinion with reference to any statement about any important matter. Having no duty in connection with the transaction under consideration, this opinion may be satisfactory to him, and might require evidence to change it. It is only when it is such a fixed attitude of mind that it would control his actions in some appreciable degree when he assumes the new relation of a trier of the fact involved in litigation that such a mental state will disqualify him. A broad-minded intelligent citizen who has never acquired any impression either directly or indirectly about the issue to be tried would be an ideal juror; but in these days, when the means of communication through the press and...