State v. McGraw

• Decision Date: 25 November 1899
• Citation: 6 Idaho 635,59 P. 178
• Parties: STATE v. McGRAW
• Court: Idaho Supreme Court

59 P. 178

6 Idaho 635

STATE v. McGRAW

Supreme Court of Idaho

November 25, 1899

CRIMINAL LAW-CHALLENGING JUROR-IMPLIED BIAS.-Juror may be challenged for implied bias, on the ground that he is client of opposing counsel. (Rev. Stats., sec. 7834, subd. 2.)

SAME-PEREMPTORY CHALLENGES-ATTORNEY AND CLIENT.-Defendant in criminal case cannot, on appeal, complain of error of trial court in sustaining challenge to an individual juror, when he accepts the panel before exhausting his peremptory challenges. (State v. Gordon, 5 Idaho 297, 48 P. 1061.)

EXCUSING JUROR-NEW TRIAL.-Error in excusing a juror is not ground for a new trial in a criminal action. (Rev. Stats., sec. 7941.)

PASSAGE OF BILL BY LEGISLATURE.-Act of February 19, 1895 (Sess. Laws 1895, p. 19), amending section 6765 of the Revised Statutes properly passed by both houses of the legislature.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment sustained.

James W. Reid, for Appellant.

Simply because the juror, Marion Butler, was a client of the defendant's attorney was no proper ground of challenge. (Idaho Rev. Stats., sec. 7834, sub. 2.) The statute concerning rape is unconstitutional and void. (Cohn v Kingsley, 5 Idaho 416, 49 P. 985; State of Idaho v Baker, ante, p. 496, 56 P. 81.)

S. H. Hays, Attorney General, for the State.

Appellant assigns as error that the court erred in excusing the juror Marion Butler. Under section 7996 of the Revised Statutes, a copy of the minutes of a challenge interposed to an individual juror and the proceedings and decision thereon are part of the record. But in order to avail himself of an objection in this way a bill of exceptions must be settled as provided in section 7941 of the Revised Statutes. This was not done in this case. In any event, an erroneous decision upon this point would not be reversible. (State v. Gordon, 5 Idaho 297, 48 P. 1061.) The second error assigned is that the court overruled the objection of defendant to the introduction of testimony, for the reason that the act under which the information was filed is unconstitutional. We contend that where the general purpose, subject or proposition of the bill is not materially changed by the amendment, that the amendment need not be read on three several days. Only material amendments changing the scope, or purpose of the bill need be read on three several days, for the reason that at the time of the adoption of our constitution we adopted the construction given by the courts of California, and for the further reason that all of the authorities which had passed upon this question at that time had decided in conformity with the rule laid down in California, and that since no court had at that time held to a contrary view, that this court is morally and legally bound to adopt that construction. (See People v. Wallace, 70 Ill. 680; State v. Brown, 33 S.C. 151, 11 S.E. 641; State v. Platt, 2 S.C. 150, 16 Am. Rep. 647; Supervisors v. Heenan, 2 Minn. 330 (281); Miller v. State, 3 Ohio St. 475; State v. Doherty, 3 Idaho 384, 29 P. 855; Larison v. P. A. & D. R. R., 77 Ill. 11; Ferguson v. M. & M. Bank, 35 Tenn. 609.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

The defendant was prosecuted by information for the crime of rape, convicted, and sentenced to imprisonment for a term of fifteen years. His motion for a new trial was denied, and this appeal is from the judgment and order denying a new trial.

The first error assigned is, the court erred in excusing juror Butler on the ground that he was a client of the attorney for the defendant. Under subdivision 2, section 7834 of the Revised Statutes, a challenge for implied bias may be taken to a juror when such juror is a client of the opposing attorney. Counsel for appellant admits such relation existed between himself and said juror. We do not think the court erred in excusing said juror. If it was error, it was without prejudice, as defendant had not exhausted his peremptory challenges when he accepted the jury. (State v. Gorden, 5 Idaho 297, 48 P. 1061.) And, further, said exception was not saved by bill, as provided by the provisions of section 7941 of the...