State v. Morgan

• Decision Date: 02 February 1901
• Citation: 64 P. 356,23 Utah 212
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, Respondent, v. JAMES MORGAN, Appellant

64 P. 356

23 Utah 212

THE STATE OF UTAH, Respondent, v. JAMES MORGAN, Appellant

Supreme Court of Utah

February 2, 1901

Appeal from the First District Court Box Elder County.-- Hon Charles H. Hart, Judge.

Defendant was convicted of the crime of murder in the first degree and sentenced to be shot. From that judgment defendant appealed and this court has heretofore affirmed that judgment (See 22 Utah 162). This appeal is from an order overruling a motion for a new trial based upon facts coming to the knowledge of the defendant subsequent to the previous decision of this court in this case.

REVERSED.

Thomas Fitch, Esq., J. D. Call, Esq., Ricy H. Jones, Esq. and George R. Chase, Esq. for appellant.

Hon. A C. Bishop, Atty. Gen'l and Wm. A. Lee, Deputy Atty Gen'l for the State.

BASKIN J. MINER, C. J., concurring in the order. BARTCH, J., concurring in the judgement.

OPINION

BASKIN, J.

It appears from the record that on the twelfth day of May, 1899, the defendant James Morgan (alias Abe Majors) was convicted in the First Judicial District Court in and for Box Elder County, of the crime of murder in the first degree, and on the sixteenth day of May, was sentenced to be shot, by the sheriff of said county, on the seventh day of July, 1899; that the defendant appealed from said judgment, and this court at the May term thereof, affirmed the judgment, that after the remittitur in the case reached the said district court said court, on the second day of July, 1900, made and entered an order requiring the sheriff of Box Elder County to execute the judgment and sentence aforesaid on the seventeenth day of August, 1900; that on the seventh day of August, 1900, defendant made, in pursuance of the notice thereof previously given, a motion to vacate said judgment and grant a new trial, and on said day the said district court made and entered an order overruling said motion, whereupon the defendant appealed to this court from said order.

The first ground of the motion is that William Fosgren and Robert C. Harris two of the jurors who sat upon the case, previous to being chosen as jurors, used expressions to various persons which showed a bias against the defendant, and yet these jurors when examined on their voir dire answered that they had neither formed or expressed an opinion as to the guilt of the defendant. The expressions referred to are set out in the affidavits read in support of said motion, and from which the following quotations are made:

James Boden, in his affidavit, stated: "I am well acquainted with William Fosgren who afterwards acted as a juror in the case of the State v. James Morgan, and for an hour on the afternoon of the thirtieth of April, he and I talked together about the occurrence, and for more than half an hour before Deputy Sheriff Thompson brought in Abe Majors in town in a buggy. Fosgren and I during the half hour previous to that sat on the coping of the court house fence on the northwest corner. Will Fosgren brought the question up and he said: 'I hope they will kill them before they bring them up so as to have no bother.' I then made some statement in reply, and he said--referring to the defendant--'He had ought to be lynched.'"

Reese Richards, in his affidavit, stated: "I am a citizen of the United States of the age of 55 years and have resided in Brigham City for 37 years last past. I am acquainted with William Fosgren. Some two or three days subsequent to the killing of William A. Brown, to-wit, on or about the fourth day of May, 1899, in Brigham City I had a conversation with William Fosgren relative to the killing of Brown; the conservation took place in front of Wheelwright's store upon the sidewalk. William Fosgren told me that he had known Capt. Brown for some time and that he was a friend of his, he having worked for him. He told me that Abe Majors had ought to be hanged and he would only be getting what was due him, and then the debt would not be paid."

Alviras Thompson, in his affidavit, stated: "I was in Brigham City early in May of 1899, standing by the gate in the court house grounds in company with William Fosgren, Vern Phillips, and others whose names I can not recall, and I heard Fosgren say that James Morgan ought to suffer death; that if he (Fosgren) was on the jury he would have him convicted, and that he, the said Morgan, deserved to die. Afterwards at the trial, when I learned that William Fosgren was on the jury it seemed strange that he should sit on the trial after what I heard him say, but I said nothing to anybody about it."

Charles E. Foxley, in his affidavit, stated: "I am a citizen of the United States, over the age of 21 years, and have been a resident of Box Elder County for twenty-four years, at present am manager of Foxley Brothers store, and assistant postmaster at the Point Lookout post-office; that I delivered on or about the sixth day of May, 1899, to Robert C. Harris a registered letter, which letter he opened in my presence, and which contained a subpoena as a juror for the May, 1899, term in the above entitled court; that I stated to him that I supposed he would sit on the Morgan murder case; that he said no, I guess not, as I have formed an opinion, and he is only a hobo, and ought to be hung. I have this day informed the attorneys for the defendant for the first time of this conversation, and know that they knew nothing of it before."

In the examination of William Fosgren on his voir dire, he was asked "from what you have heard or read have you formed or expressed an unqualified opinion as to the guilt or innocence of the defendant," and he replied, "I don't know as I have expressed any opinion at all." He further stated that from what he had heard he had formed somewhat of an opinion as to the guilt or innocence of the defendant, but did not know of any reason why he could not sit in the case as a juror and a just verdict render according to the evidence as given by the witnesses, and according to the law as laid down by the court.

The other juror, Robert C. Harris, stated on his voir dire that he had neither formed or expressed an opinion, as to the guilt or innocence of the defendant.

The declarations of these jurors, as set out in said affidavits, were unknown to either the defendant or his attorneys, until the twenty-sixth day of July, 1900.

Both of said jurors made affidavits on behalf of the State on said motion, but did not deny the statements attributed to them in the affidavits made in support of said motion, nor is there anything in the record contradicting these affidavits, and therefore they must be considered as admitted.

It is evident that these jurors were biased and purposely made false statements under oath, in order to qualify as jurors. Especially is this so in respect to the juror Fosgren. For neither of these jurors in his affidavit denies that he had made the statements attributed to him, or stated that he did not remember when being examined, that he had made such statements, or alleged any excuse whatever for failing to reveal what he had previously said respecting the defendant.

There is an overwhelming array of authorities which hold that facts similar to those disclosed in this case, disqualify a juror, vitiate the judgment, and entitle the defendant to a new trial.

The following text of sec. 844 of Wharton's Crim. Proc. is supported by numerous cases cited in N. 2, to-wit:

"When it appears after trial that a juror had beforehand prejudged the case, but had improperly withheld this fact before acceptance, or when asked as to opinion on voir dire had given false answers, and such formation of opinion was unknown to the party at the time, a new trial will be granted." Sellers v. The People, 3 Scam. (Ill.) 413; State v. Taylor, 64 Mo. 358; State v. Wyatt, 50 Mo. 309; Henrie v. The State, 41 Tex. 573; Sam v. The State, 31 Miss. 480; Bussie v. The State, 19 Ohio 198; Chartz v. Territory, 32 P. 166; Territory v. Kennedy, 3 Mont. 520; Moncrief v. The State, 59 Ga. 470; Romaine v. The State, 7 Ind. 63; People v. Reese, 3 Utah 72, 2 P. 61; U.S. v. Christensen, 7 Utah 26; 1 Bish. Crim. Proc. secs. 949, 6, 24 P. 618, and note 1; Maxwell's Crim. Proc., p. 648.

The State instead of contradicting the facts upon which the motion is based, resists the motion on the ground that a new trial can only be had upon the grounds and within the time specified in sec. 4952, R. S.; that the ground of the motion is not specified in said section, and the motion was not made within the time prescribed.

It is provided in said section that "When a verdict shall have been rendered against the defendant, the court may, upon his application, grant a new trial in the following cases only:

"1. When a trial shall have been had in his absence, if the information or indictment is for a felony.

"2. When the jury shall have received out of court any evidence other than that resulting from a view of the premises, or any communication, document, or paper referring to the case.

"3. When the jury shall have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case may have been prevented.

"4. When the verdict shall have been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.

"5. When the court shall have misdirected the jury in a matter of law, or shall have erred in the decision of any question of law arising during the course of the trial, or shall have done or allowed any act in the case prejudicial to the substantial rights of the defendant.

"6. When the verdict is contrary to law or evidence.

"7. When new evidence shall have been discovered, material to the...