State v. Murphy

• Decision Date: 20 June 1894
• Citation: 9 Wash. 204,37 P. 420
• Parties: STATE v. MURPHY.
• Court: Washington Supreme Court

37 P. 420

9 Wash. 204

STATE v. MURPHY.

Supreme Court of Washington

June 20, 1894

Appeal from superior court, King county; T. J. Humes, Judge.

James Murphy was convicted of murder, and appeals. Reversed.

Ronald & Piles, for appellant.

John F Miller, Pros. Atty., and A. G. McBride, for the State.

DUNBAR C.J.

The defendant was prosecuted for murder in the first degree. A verdict of guilty of murder in the second degree was rendered, motion for a new trial was made and overruled, and defendant sentenced to a term of 15 years in the penitentiary. The first assignment of error is that the court erred in denying defendant's motion for a continuance. The affidavit for continuance shows that one Daniel McMillan was a material and necessary witness on behalf of the defense, in that the defendant could prove by said Daniel McMillan certain threats that had been made by the deceased against the defendant, and a continuance was asked for six days to procure the attendance of the said McMillan. Inasmuch as it does not appear from the affidavit that this evidence could not have been obtained from other witnesses, and inasmuch as under the statute a large discretion is vested in the trial court in relation to the continuance of a cause, we are not prepared to say that there was such an abuse of discretion by the court in refusing to grant a continuance on the showing made that this court would reverse the judgment on that ground.

The second assignment, however, viz. that the court erred in denying defendant's challenge for cause to Juror Kile is, in our minds, a more serious one, as it seems to us that a substantial right was denied to the defendant, namely, the right to be tried by an impartial jury. In order that there may be no misconception of what the ruling of the court is on this question, we think it important to set out fully the examination of the juror Kile. After stating that he had read an account of the murder in the papers, and answering some preliminary questions, the following questions and answers appear: "Question. Then such opinions as would be formed by reading the papers there were formed and expressed? Answer. Yes, sir. Q. And those papers all seemed to give it one way, didn't they? A. Yes, sir; as near as I could tell, the papers were very much one way. Q. And the papers expressed opinions, did they not? A. Yes, sir. Q. And the opinions which you and your neighbors expressed were in accordance with the opinions expressed in the newspapers? A. Yes, sir. Q. And you have not had any occasion since that to change your opinion? A. No, because I have not heard anything more about it. Q. And you still, of course, entertain now the opinion which you formed at that time? A. I do. Q. That opinion is such an opinion as would require evidence to remove, would it? A. It would. Q. You could not diregard that opinion in this case unless there should be evidence introduced to overcome that opinion, could you? A. I could not. Q. That opinion will stay with you in this case, will it, unless evidence is introduced to the contrary to remove it? A. Yes, sir. Q. If there should be no evidence introduced to the contrary, then that opinion which you have formed, and which you now entertain, will simply add weight to whatever opinion you form on this testimony? A. I think it would. Q. Will you consider that opinion as a circumstance, or as giving weight to the testimony here which is given in accordance with that opinion? A. Yes, I think I would. Q. Will you diregard that opinion until it is overcome and wiped out of your mind by evidence to the contrary? A. I don't see as I could. Q. Would you require evidence to the contrary before you would disregard that opinion? A. I would. Q. Your mind at this time, then, is not perfectly free from any opinion as to the merits of this case? A. It is not any more than what I have read. I have an opinion, of course. Q. So that that opinion is still in your mind at the entrance upon this trial? A. It is. Mr. Ronald: I think, if your honor please, we will interpose a challenge for cause to this juror. The Court: Is the challenge denied? Mr. Miller (prosecuting attorney): We deny the challenge. The Court: You say you have some opinion of the defendant's guilt or innocence on this charge? A. I have, from what I read in the paper. Q. Is that opinion founded wholly upon what you read in the paper? A. That is what it is founded on; yes, sir. Q. Founded wholly upon what you read in the paper? No one has undertaken to tell you what the facts were in this case? A. No, because them that I talked with didn't know any more than I did about what they read in the paper. Q. You all formed your impression from what you read in the newspaper? A. Yes, sir. Q. Do you think that you can hear and determine the facts in this case from the evidence given by the witnesses here upon the witness stand with the same impartiality and with the same fairness that you could if you had heard nothing about this thing? A. I think I could. Q. Well, will you hear and determine this cause with that same degree of impartiality and fairness that you would if you had heard nothing about it? A. Well, I think it would take a little more evidence than it would if I had never heard anything about it. Q. You think what you read in the newspapers would be liable to influence you here as a juror in this case? A. It would, unless I had something that was strong on the other side. Q. You would allow what you read in the newspapers to influence your judgment? A. To a certain extent I should, unless I knew something to the contrary. Q. Do you feel as though you were perfectly free and unbiased in this case? A. I do, so far as that is concerned. Q. You don't think, then, that you would be able to hear the case with the same impartiality that you would if you had heard nothing about it? A. I suppose there would be, to a certain extent, a little in my mind. Q. Do you think you would be able to lay aside what impressions you have formed from reading the newspapers, and try the case here upon the evidence? A. I would if I could get stronger evidence. Q. Do you think you would be able to wholly lay aside the impressions you have received from reading this account in the newspaper, and try the case wholly upon the evidence here introduced? A. Yes, I think I could. Q. You think you can do that? A. Yes, sir." This is all the examination that was made of the juror. At its close the defendant's counsel urged upon the court that it was defendant's right to have a fair jury; that there were a great many jurymen in the county; that it was no trouble to get a fair jury; and that, therefore, there was no necessity for having this man sit on the jury, with his mind entertaining in the least any impressions upon the merits of the case. But the court decided that the juror was competent, and he was accepted. The record shows that defendant's peremptory challenges were all exhausted.

In these days of general and rapid dissemination of news and of events, where rumors of crimes are spread by means of newspapers and other agencies rapidly throughout the country and are brought to the attention of every intelligent citizen, the rule in relation to information possessed by jurors has necessarily become somewhat changed, and the strict enforcement of a lack of knowledge on the subject to be adjudicated necessarily somewhat relaxed; and it would work a miscarriage of justice if the simple reading of newspaper reports of crimes that had been committed, or the listening to rumors concerning the commission of such crimes, should be held to exclude jurors from the trial of criminal cases; and no court in this age, we think, would go to the extent of holding a juror incompetent simply because he had read newspaper reports of the perpetration of a crime, or had heard rumors concerning its perpetration. But, while regarding the changed conditions of society in this respect, and giving to them due consideration, it will not do to go to the other extreme, and relax the rule to the extent of depriving a be tried by an impartial jury. It must be conceded that, if a juror has an opinion as to the guilt or innocence of a defendant, and that opinion is so material and tangible and fixed as to require evidence to remove it, he does not enter the jury box as an impartial juror; and it makes no difference whether that opinion has been obtained through the medium of newspapers which professed to recite the facts, and which recitation the juror believed, or whether it was obtained by listening to the rehearsal of the facts by some individual. The material thing to be ascertained is whether the mind of the juror is impartial, and whether he has an opinion, which must always be distinguished from a mere floating impression, as to the guilt or innocence of the defendant. How he came by that opinion is entirely immaterial. If a juror testifies that he has read a newspaper account, and that, if such account be true, he believes the defendant to be either guilty or innocent, as the case may be, he manifestly would be a competent juror, for he has no fixed opinion as to whether the facts which have been related to him are true or not. Hence he approaches the examination of the case with a mind perfectly susceptible to receive the truth as it appears from the testimony presented. But where he states that he has heard a recital of the facts, whether by a newspaper or by an individual statement, and that he believes the facts stated, and from such statements that he is in a condition of mind that it would take evidence to remove the belief that he already entertains, then it seems equally manifest that he comes to the investigation of the case with a bias either for or against the defendant, and is...