State v. Morse

• Decision Date: 26 June 1899
• Parties: STATE v. MORSE.
• Court: Oregon Supreme Court

57 P. 631

35 Or. 462

STATE v. MORSE.

Supreme Court of Oregon

June 26, 1899

Appeal from circuit court, Umatilla county; Stephen A. Lowell Judge.

Zibe Morse was convicted of larceny, and he appeals. Affirmed.

J.H. Raley and Thos. Fitz Gerald, for appellant.

H.J Bean, Dist. Atty., and Jas. A. Fee, for the State.

BEAN J.

The defendant was indicted, jointly with Augustus Hill and Jack Ogg, for the crime of larceny in stealing 52 head of horses the property of Peter Nelson. He was tried separately, and convicted, and from the judgment rendered thereon he appeals.

The first three assignments of error relate to the overruling of the defendant's challenge of the jurors Carney, Nelson and Rose for cause. The Carney case, being the strongest for the defendant, will be the only one considered. On his examination by the defendant's counsel, he stated that he was acquainted with the prosecuting witness and the defendant; that he had heard a good deal about the case, and had talked with persons who seemed to have considerable knowledge concerning it, but did not know whether they were witnesses or not; that from what he had heard and read he had formed an opinion as to the guilt or innocence of the defendant, which he still retained, and which it would take evidence to remove; that he had no bias or prejudice which would prevent him from giving the defendant a fair and impartial trial, and, if selected as a juror, would certainly try to do so; that he heard a little of the testimony on a former trial, and had heard a great deal on the outside, and in answer to a leading question, said he thought the opinion he then entertained would hinder him from giving the defendant a fair and impartial trial. He was thereupon challenged for cause, and upon examination by the district attorney stated that, if accepted as a juror, he should certainly endeavor to try the case fairly and impartially, upon the testimony of the witnesses and the law as given by the court, although he felt that his previous opinion would make it more difficult for him to do so; that, if he should hear persons whom he credited and believed contradict what he had already heard, without their being under oath, it would have a tendency to remove the opinion or impression that he then had, and would offset what he had already heard; that, if accepted as a juror, he thought he could try the case fairly and impartially, totally disregarding anything he had heard concerning the guilt or innocence of the defendant; that he could listen to the testimony of the witnesses and the instruction of the court, and render a verdict accordingly, disregarding all he had heard outside concerning the matter. The challenge was thereupon resisted by the counsel for the state, and, in answer to questions propounded by the court, the juror said he felt that he could disregard his previous opinions, and try the case entirely upon the evidence as given upon the stand and the law as given by the court, although he had heard a good deal about the case, and, of course, had some idea in regard to it. The condition of the juror's mind, as thus disclosed by his examination, indicates that his opinion was not of a fixed and determined character, but was so unsubstantial that contradiction from any reliable source would be as readily accepted as true as the statements upon which such opinion was formed, and would remove any impression he then had. His examination by the court and counsel was exhaustive, and carefully conducted, and we do not think that it shows his opinion to be of such a character as to disqualify him as a matter of law. He evidently had no prejudice against the defendant, and, so far as we can see from his examination, there was no such prejudgment of the case as would prevent him from sitting as a fair and impartial juror. His answers to the questions propounded were not those of a positive man, hasty to judge and prompt to condemn, but rather of a careful, conscientious man with an obvious purpose to conceal nothing from his interrogators. It is true he had formed some opinion concerning the guilt or innocence of the defendant, but he seemed conscious of the fact that he could disregard all he had heard of the case and try it on the evidence produced. We cannot think, under these circumstances, his disqualification was so apparent as to render the overruling of the challenge reversible error. We have repeatedly held, and it may now be regarded as the settled law of this state, that the qualifications of a juror, when challenged for actual bias, is primarily a question for the trial court, and that its findings will not be disturbed on appeal unless the disqualification is clearly shown as a matter of law. Kumli v. Southern P. Co., 21 Or. 505, 28 P. 637; State v. Brown, 28 Or. 147, 41 P. 1042; State v. Kelly, 28 Or. 225, 42 P. 217; State v. Olberman (Or.) 55 P. 866. For, as said in Kumli v. Southern P. Co., supra: "It is ordinarily more safe and just to the juror, and the cause of truth, to trust to the impression made upon the trial court, which heard his testimony and noticed his manner and appearance while under examination, subject to the scrutiny of counsel, than to any written or reported statement of his testimony. His tone, temperament, and personal peculiarities, as exhibited on his examination, and which do not appear in the written report of his testimony, are important factors in determining his competency as a juror. If a person called as a juror, on his examination when challenged, discloses that he has a fixed and definite opinion in the case on the merits, and nothing further is shown, the court ought, as a matter of law, to reject him as incompetent. Such a juror necessarily does not stand indifferent between the parties, and it matters little from what source he received the information upon which his opinion is based. If, however, he has no fixed belief or prejudice, and is able to say he can fairly try the case on the evidence, freed from the influence of such opinion or impression, his competency becomes a question for the trial court, in the exercise of a sound discretion, and its findings ought not to be set aside by an appellate court unless the error is manifest. 'No less stringent rules,' says Mr. Justice Waite, 'should be applied by the...