State v. Prevost

• Decision Date: 30 July 1963
• Citation: State v. Prevost, 105 N.H. 90, 193 A.2d 22 (N.H. 1963)
• Parties: STATE v. David H. PREVOST, Sr.
• Court: New Hampshire Supreme Court

Page 22

193 A.2d 22

105 N.H. 90

STATE v. David H. PREVOST, Sr.

Supreme Court of New Hampshire.

Argued June 4, 1963.

Decided July 30, 1963.

William Maynard, Atty. Gen., Elmer T. Bourque, Deputy Atty. Gen., and Irma A. Matthews, Law Assistant, for the State.

Howard B. Lane and Francis H. Ayer, Keene, for defendant.

KENISON, Chief Justice.

The defendant's principal contention is that the Trial Court abused its discretion in allowing the State to excercise one of its peremptory challenges to remove juror number four from the panel after he had been accepted by counsel for the State and the defendant but before the jury were sworn. The cases are conflicting on this point and the issue has not been decided in this jurisdiction. Orfield, Criminal Procedure from Arrest to Appeal 405 (1947); Annot. 3 A.L.R.2d 499; Vanderbilt, Judges and Jurors: Their Function, Qualifications and Selection 71-74 (1956). The defendant's counsel has devoted the major portion of his brief to a careful analysis of the authorities with the full realization that there are divergent views on this issue. Note, Selection of Jurors by Voir Dire Examination and Challenge, 58 Yale L.J. 638 (1949); Thompson & Merriam, Juries, c. 10 (1st ed. 1882).

In the present case nine days were consumed in drawing the jury. Juror number four was drawn on Friday, September 22 and accepted by counsel for the State and for the defendant in addition to three other jurors who had previously been accepted. On Monday, September 25 and on Thursday, September 28, the State sought to challenge this juror for cause based on information acquired after the juror was drawn but this was denied by the Trial Court. Thereupon the State asked the Court to exercise its discretion in allowing it to exercise one of its peremptory challenges against juror number four, which the Court allowed subject to the defendant's exception.

While in the past the selection of jurors in both civil and criminal cases has generally not been a time-consuming procedure in this state, both counsel and the Court in the present case took unusual precautions to select an impartial jury. Fifth Report, N.H. Judicial Council, pp. 12-13 (1954); RSA 606:3, 4. Although authority has been delegated to the Superior Court to adopt rules for the drawing and impanelling of juries (RSA 519:20), no rules of general application have been adopted. Shulinsky v. Boston & M. Railroad, 83 N.H. 86, 87, 139 A. 189; Lebrun v. Boston & M. Railroad, 83 N.H. 293, 294, 142 A. 128; RSA 519:19.

The constitutional provision that it is the right of every citizen to be tried by 'judges as impartial as the lot of humanity will admit' (N.H.Const., Pt. I, Art. 35th) has been given a broad interpretation. Moses v. Julian, 45 N.H. 52; Opinion of the Justices, 75 N.H. 613, 617, 72 A. 754. See 61 Colum.L.Rev. 792, 794 (1961). Specifically this constitutional provision for such impartiality of the judiciary 'as the lot of humanity will admit' has been applied to jurors. State v. Sawtelle, 66 N.H. 488, 503, 32 A. 831; Tuftonboro v. Willard, 89 N.H. 253, 197 A. 404. As early as 1821 the thought was expressed in Rollins v. Ames, 2 N.H. 349, 351 in the following language: 'It is highly important, that the conflicting rights of individuals should be adjusted by jurors as impartial as the lot of humanity will admit. That their minds should be free as the 'unsunned snow' from any previous impressions, and should receive no hue but what the law and the evidence at the trial may impart.'

In denying the State's motions to challenge for cause juror number four, the Court indicated upon the conflicting evidence and statements of counsel that 'it is close.' In allowing the State to then use a peremptory challenge before the jury was sworn, it is evident that the Court thought that this procedure was the better course to follow in order to obtain an impartial jury under all the circumstances. The defendant contends the rule that should be applied is that a juror cannot be challenged peremptorily after he has been accepted by the party challenging or by both sides. The State does not contend that it has an absolute right to a peremptory challenge in this situation but that the Presiding Justice has discretionary authority to allow it.

'There is ample authority for the rule that it is within the discretionary power of the trial court to allow a party to exercise a peremptory challenge against a juror who has been accepted by the party challenging or by both sides; and such ruling on the part of the trial court permitting the challenge will stand on appeal unless an abuse of the court's discretion is shown.' 5 Wharton's Criminal Law and Procedure, s. 1994 (1957). See also, Annot. 3 A.L.R.2d 499, 508. This rule has the support of recent cases. State v. Brown, 253 Iowa 658, 113 N.W.2d 286 (1962); Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959) overruling earlier cases to the contrary. Furthermore this rule is consistent with the practice in this jurisdiction of placing the primary responsibility for the selection of an impartial jury on the court rather than counsel. State v. Jones, 50 N.H. 369; State v. Comery, 78 N.H. 6, 95 A. 670; Vanderbilt, Minimum Standards of Judicial Administration 197-198 (1949). This rule, applicable both to prosecution and defense, is based on the proposition that it is more important to slect an impartial jury than it is to give either the prosecution or the defense a vested right in the rejection of a juror. We adopt the rule that the Trial Court has discretionary authority before the jury panel is sworn to allow the State or the defendant to exercise a peremptory challenge of a juror that has been accepted by both parties.

The widow of the murder victim was cross-examined by defendant's counsel. Exception was taken to the refusal of the Court to allow cross-examination relative to a divorce libel she had brought against her deceased husband. It appeared that the divorce libel was filed one day and she requested her attorney to withdraw it the next day. Subject to exception, the libel for divorce was excluded by the Court. This was properly regarded as a collateral...