State v. Leatherwood.

• Decision Date: 29 November 1920
• Docket Number: No. 2433.,2433.
• Citation: 194 P. 600,26 N.M. 506
• Parties: STATEv.LEATHERWOOD.
• Court: New Mexico Supreme Court

26 N.M. 506

194 P. 600

STATE

v.LEATHERWOOD.

No. 2433.

Supreme Court of New Mexico.

Nov. 29, 1920.Rehearing Denied Jan. 27, 1921.

Syllabus by the Court.

Statutory provisions for the selection of jurors are usually construed by the courts to be directory, unless the contrary intent is clearly manifested by the statute, and, being directory, an immaterial departure from the method prescribed does not vitiate the trial or invalidate the jury.

So long as the defendant in a criminal case is tried by a fair and impartial jury, he cannot complain of the fact that the trial court erroneously excused certain members of the regular panel from service. A court may put a legal juror off, and its action is without prejudice to the defendant if a legally qualified and competent juror is put on in his stead, but the court cannot allow an illegal juror to sit in the trial of the case.

A peremptory challenge to a juror may be allowed by the court at any time before the jury is sworn to try the case, and the fact that the juror has been accepted by both parties does not preclude the court from thereafter, and before the jury is sworn, allowing one of the parties to exercise a peremptory challenge out of the order provided by statute.

It is not proper for the court to give an instruction which may be abstractly correct as a matter of law where there is no basis for it in the evidence, nor is it proper for the court in instructing the jury to define rules of evidence. Held improper for the court to instruct as to when a statement made by the deceased, for whose murder the defendant is on trial, would be admissible or inadmissible in evidence, when there was no evidence in the case to the effect that the deceased had made a statement concerning the difficulty.

Appeal from District Court, Mora County; Leahy, Judge.

Baylor Leatherwood was convicted of murder in the second degree, and he appeals. Reversed, and new trial granted.

Under Laws 1917, c. 93, § 30, a peremptory challenge to a juror may be allowed by the court at any time before the jury is sworn to try the case, and the fact that the juror has been accepted by both parties does not preclude the court from thereafter, and before the jury is sworn, allowing one of the parties to exercise a peremptory challenge out of the order provided by statute.

J. Leahy, of Raton, and C. W. G. Ward and S. B. Davis, Jr., both of E. Las Vegas, for appellant.

Harry S. Bowman and Nicholas D. Meyer, Asst. Attys. Gen., for the State.

ROBERTS, J.

Appellant was convicted of the crime of murder in the second degree, and appeals.

The first two errors assigned relate to the petit juror. There had been a murder case tried immediately preceding the impaneling of the jury in the present case, which resulted in a verdict of acquittal. Five of the regular panel of the jury for the term sat in the trial of the case referred to. The court, after excluding all members of the regular panel from the courtroom, except the the five who sat in the trial of that case, excused the five jurors from further service during the term, giving as a reason that the jurors either deliberately or willfully disregarded their oaths as jurors in the trial of the case referred to, or that they were too dense to serve as jurors. Five other jurors to take the place of the ones so discharged were selected pursuant to the provisions of chapter 93, Laws 1917.

The selection of the jurors for the trial of cases in the district courts is governed by the provisions of this act. By section 12 it is provided that the list of names drawn for the term “shall constitute the names for the regular venires for grand and petit juries,” and that if there are extra names the list must be made up in the order in which the names are drawn, except as to such persons as are excused “for good cause shown to the court.” Section 18 provides that no person shall be excused from service by the judge “except for good and sufficient reasons.” Because of these provisions appellant contended that the court was without power to discharge the five jurors mentioned, or any jurors except “for good and sufficient reason,” and that the reasons set forth were not sufficient to justify this action of the court.

[1] Statutory provisions for the selection of jurors are usually construed by the courts to be directory, unless a contrary intent is clearly manifest by the statute, and, being directory, an immaterial departure from the method prescribed does not vitiate the trial or invalidate the jury. The present act authorizes the judge of the district court to excuse jurors from service for good and sufficient reasons, but the court necessarily determines the sufficiency of the reasons justifying the discharge. But the authorities generally hold that, where a competent and impartial jury is secured in a criminal case, a conviction will not be reversed because of some inadvertent failure to comply with every directory provision of the jury law, in the absence of a showing of prejudice against the accused. 16 R. C. L. p. 290. And this rule was followed by this court in the case of State v. Rodriguez, 23 N. M. 156, 167 Pac. 426, L. R. A. 1918A, 1016. In that case the rule is stated as follows:

“No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, and against his objection, a juror was rejected by the court upon insufficient grounds, unless, through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created.”

[2] While the five jurors in question were excused, assuming for the sake of argument that they were competent and qualified, their places were taken upon the jury by five others equally as honest, competent, and qualified, and no prejudice could have resulted to the appellant. He had no vested right to be tried by those five jurors or to have them sit upon his panel. He did have the right to be tried by a fair and impartial jury, and this right was accorded to him and no claim is made that the jury as finally selected was not composed of competent, qualified, fair, and impartial jurors. In fact, appellant had five peremptory challenges remaining when he accepted the jurors, and it is to be presumed that if objectionable jurors were at that time upon the panel he would have exercised his peremptory challenges.

Appellant cites and relies upon the case of Hildredth v. City of Troy, 101 N. Y. 234, 4 N. E. 559, 54 Am. Rep. 686, in which case the court erroneously excused 12 of the regular jury panel from the trial jury on the ground that as residents of the city of Troy they were qualified. The appellate court held this to constitute reversible error. The contrary is held by the Supreme Court of Maine in the case of Snow v. Weeks, 75 Me. 105. The court said:

“At plaintiff's request, the presiding judge excluded from the panel several jurors from the city of Rockland, upon the assumption that the city might have some interest, or the jurors some bias, in the result of the suit. It is denied by the defendant that such bias or interest existed. But it matters not whether it existed or not. It was a matter for the exercise of the discretion of the judge. To his ruling upon such a question exceptions do not lie. He may put off a juror when there is no real and substantial cause for it. That cannot legally injure an objecting party as long as an unexceptionable jury is finally obtained. It is quite a different question where a judge puts a juror upon the panel who cannot sit. He may put a legal juror off. He cannot allow an illegal juror to go on. Ware v. Ware, 8 Me. 29; Shea v. Lawrence, 1 Allen, 167.”

In the case of People v. Searcey, 121 Cal. 3, 53 Pac. 360, 41...