State v. Jones

• Decision Date: 01 September 1920
• Docket Number: 971
• Citation: 27 Wyo. 46,191 P. 1075
• Parties: STATE v. JONES
• Court: Wyoming Supreme Court

191 P. 1075

27 Wyo. 46

STATE v. JONES

No. 971

Supreme Court of Wyoming

September 1, 1920

APPEAL from the District Court, Natrona County; HON. C. E. WINTER Judge.

John Jones was convicted of grand larceny and sentenced to a term in the penitentiary. From this judgment and sentence defendant appeals. The facts are stated in the opinion.

Reversed and remanded.

Hagens Stanley & Murane, for Appellant.

The Court erred in allowing the prosecution a peremptory challenge after defendant's challenges were exhausted the prosecution having waived its fourth peremptory challenge; this was a violation of Section 6205 C. S. 1910; it was reversable error; (Fouch v. State, 45 S.W. 678; Williams v. State, 39 S.W. 709; Gravely v. State, 64 N.W. 452;) the right of peremptory challenge given the state is statutory and cannot be enlarged in interpretation; (U. S. v. Shackelford, 15 L.Ed. U. S. 495;) The court erred in refusing to instruct the jury on the question of accomplice, it being defendant's contention that the witness Hie was shown by the testimony to have been an accomplice in the larceny of the goods in question; the Court erred in giving instruction No. 8 with reference to proof of intent which was an invasion of the province of the jury; The court erred in permitting the admission of a mass of testimony with reference to other goods, a tool chest, a cook stove and a quantity of furniture which was given in such a way as to create an inference that defendant had something to do with its having been stolen from the railroad company, altho no proof that said goods were stolen was offered; it was improper to admit evidence in this case of similar crimes; if it had been proper to do so at all, it could only be done where the evidence was sufficient to show that the crimes similar to the one charged had been actually committed by the defendant; (Telton v. State, 132 S.W. 480; Van Nort v. State, 124 S.W. 654; State v. Hide, 136 S.W. 316; State v. Humason, 32 P. 111; Myers v. State, 108 S.W. 392; Com. v. McGarvey, 165 S.W. 973; State v. Brown, 134 P. 623; State v. Gottfredson, 64 P. 523; State v. Smith, 106 P. 797; Johnson v. State, 123 S.W. 1105; McIver v. State, 60 S.W. 50; Bowman v. State, 155 S.W. 139; People v. Geyer, 90 ME. 48; People v. Santagata, 114 N.Y.S. 320; Hawkins v. State, 64 S.E. 289);

W. L. Walls, Attorney General, for Respondent.

It is conceded that the trial Court committed error in allowing the prosecution to exercise an additional peremptory challenge after both sides had exhausted their peremptory challenges allowed by the statute, (6205 C. S. 1910;) under the statute, defendant was entitled to have the last peremptory challenge; (People v. Durant, 116 Cal. 179; State v. Dalton, 69 Miss. 611;) it was also erroneous to receive evidence of similar alleged crimes, there being no statement in the record of the purpose for which this evidence was offered, and no instruction requested, or given by the Court to the jury in regard to the matter; the result was that the evidence served to discredit the defendant in the eyes of the jury and was prejudicial to his rights; the refusal of the Trial Court to instruct the jury on the subject of an accomplice seems to be proper, the record not disclosing any testimony from which the jury could predicate a conclusion that there was an accomplice.

TIDBALL, DISTRICT JUDGE. BEARD, C. J., and POTTER, J., concur. Blydenburgh, J., being unable to sit in this case, Hon. V. J. Tidball, Judge of the Second Judicial District, was called in as a member of the court and sat in his stead.

OPINION

TIDBALL, DISTRICT JUDGE.

The defendant, John Jones, was convicted by the verdict of a jury of grand larceny, and sentenced to a term of years in the State Penitentiary. From this judgment and sentence defendant appeals to this court. The alleged errors, while numerous, may all be considered under two heads:

1. That the trial court erred in allowing the state to exercise a peremptory challenge after the State had waived its fourth and last peremptory challenge, and after the defendant had exhausted his peremptory challenges.

2. The trial court erred in the admission of evidence relating to the taking by defendant of other articles, at different times, than those charged to have been stolen in the information.

At the time of the argument of the case in this court, the Attorney General stated that in his opinion the trial court erred in both particulars above stated, and that the defendant should be granted a new trial, but requested that this court fully consider the matter before rendering a decision. That this court has done, and has arrived at the same conclusion as did the Attorney General.

1. It appears from the record that after the defendant had exercised his sixth peremptory challenge in the empaneling of the jury, the State waived its fourth and last peremptory challenge. Thereupon the defendant exercised his seventh peremptory challenge, excusing Juror Henry. Juror Howland was then called in Henry's place. Both the State and the defendant passed Howland for cause. Defendant then exercised his eighth and last peremptory challenge, excusing Juror Mahoney. Juror Fanning was then called and excused for cause. Juror Wagner was then called in Fanning's place and was passed for cause by both sides. The State then, over the objection and exception of defendant, was permitted to exercise a peremptory challenge, excusing Howland. Juror Kraus was then called in place of Howland and passed for cause by both sides; and the Court then announced that all challenges having been exhausted, the jury should be sworn to try the case.

The statutes of Wyoming provide (Wyo. C. S. 1910, Section 6205):

"Sec. 6205. The defendant may challenge peremptorily, in capital cases, twelve jurors, in other felonies eight jurors, and in misdemeanors four jurors. The prosecution may challenge peremptorily, in capital cases, six jurors, in other felonies, four jurors, and in misdemeanors two jurors; and the number of peremptory challenges so allowed to the prosecution shall be multiplied by the number of defendants on trial in each case. Each defendant shall be allowed his separate peremptory challenges. The peremptory challenges shall be alternately in the following order: The prosecution may challenge one juror for each defendant then on trial; then each defendant may challenge two jurors; then the prosecution may challenge one juror for each defendant then on trial; then each defendant may challenge two jurors, and the same shall continue in this order as near as may be until the challenges shall all be exhausted or the jury accepted."

It will thus be seen that the trial court did not follow the requirements of the statute either as to the number or the order of peremptory challenges allowed to the prosecution, in that the trial court allowed the prosecution to exercise a peremptory challenge after it had waived its fourth and last peremptory challenge, and after the defendant had exercised all his peremptory challenges. The waiver of a challenge exhausts that challenge the same as though it has been used. Some cases hold that such a waiver waives only as to those jurors then in the box, but that such challenge may be exercised as to jurors called after the challenge is waived. Those cases, however, are decided, so far as we are able to discover, under statutes different from ours, or under facts different from those presented in the case at bar. See State vs. Vance, 29 Wash. 435, 70 P. 34; State vs. Sloan (Mont.), 22 Mont. 293, 56 P. 364; State vs. Peel, 23 Mont. 358, 59 P. 169, 75 Am. St. Rep. 529; and The People vs. Montgomery, 53 Cal. 576. In criminal cases especially, a statute prescribing the manner in which challenges shall be exercised, is mandatory. (24 Cyc. 365, 367; 16 R. C. L. 250.) We are of the opinion that the trial court committed reversible error in allowing the prosecution an additional peremptory challenge after it had waived its fourth and last challenge and after the defendant had exercised all his peremptory challenges.

2. The information charges the defendant with the theft of one sewing machine, and one lot of harness of the personal goods and chattels of the Chicago, Burlington &...