State v. Riley
Decision Date | 20 May 1911 |
Docket Number | 2193 |
Citation | 41 Utah 225,126 P. 294 |
Court | Utah Supreme Court |
Parties | STATE v. RILEY |
On application for Rehearing June 18, 1912.
APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.
Thomas Riley was convicted of murder and he appeals.
AFFIRMED.
James D. Pardee for appellant.
A. R Barnes, Attorney-General, and E. V. Higgins, and Geo. C Buckle, Assistant Attorneys-General, for the State.
OPINION
The defendant, Thomas Riley, was informed against in the district court of Salt Lake County for the murder of one George W. Fassell on March 26, 1910. A trial was had, and on June 23, 1910, the defendant was found guilty as charged, and was sentenced, July 8, 1910, to be executed. From the judgment rendered, the defendant has appealed to this court.
The following terse and lucid statement of the facts leading up to and surrounding the commission of the homicide is taken from the able and exhaustive brief filed by defendant's counsel in the case.
The assignment of error first discussed by appellant relates to the manner in which the jury was impaneled. Twelve jurors were first called and sworn on their voir dire, and examined as to their qualifications to serve as jurors. Some of these jurors were excused for cause. The defendant then demanded that before he should be required to exercise peremptory challenges as to the jurors remaining in the jury box other jurors be called to take the place of those who were excused. The court ruled that both the state and defendant must exercise or waive their right to peremptorily challenge the jurors remaining in the jury box, and those not challenged should be sworn to try the case, before any additional jurors should be called to take the place of those who were challenged and excused. Of the twelve jurors first drawn, eleven were either excused for cause, or challenged peremptorily, and one was accepted and sworn to try the cause. This process was repeated until the panel was completed and accepted to try the cause. Counsel for appellant contends that this was error.
Section 4826, Comp. Laws Utah 1907, provides that "before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror, he must do so when the juror appears and before he is sworn." Section 4828 provides that "it must be taken when the juror appears and before he is sworn to try the cause; but the court may for cause permit it to be taken after the juror is sworn and before the jury is completed." These provisions were taken from the California Penal Code ; and the Supreme Court of that state has repeatedly held that the method pursued in the impaneling of the jury in this case is, under the foregoing provisions of the statute, the proper one to follow. (People v. Scoggins, 37 Cal. 676; People v. Russell, 46 Cal. 121; People v. Riley, 65 Cal. 107, 3 P. 413; People v. Hickman, 113 Cal. 80, 45 P. 175.) We also invite attention to People v. Lee, 1 Cal.App. 169, 81 P. 969, and to 24 Cyc. 250.
This question was before this court in People v. Callaghan, 4 Utah 49, 6 P. 49, and Mr. Justice Emerson, speaking for the court, said:
On the authority of these cases, which we think enunciate the correct rule of impaneling a jury under the provisions of the statute herein referred to, and which is fully supported by the authorities above cited, this assignment of error is overruled.
It is alleged in the next assignment of error that the court erred in overruling defendant's motion for a change of venue. The motion was based upon an affidavit made by defendant, in which he alleged that he believed he could not have a fair and impartial trial in Salt Lake County because of the prejudice existing among the people, residents of said county, against him. No counter affidavits were filed. The record shows that the trial was commenced on June 13, 1910. At the time the case was called for trial, the defendant being present in court, his counsel announced that he was ready for trial, and the trial proceeded without any request having been made, by motion or otherwise, for a change of venue. On the first day of the trial, several jurors were examined, and one juror was accepted and sworn to try the case. The facts and circumstances leading up to and which prompted the making and filing of the affidavit and motion for a change of venue are about as follows:
Upon the convening of the court on the second day of the trial (June 14, 1910), the court called attention of counsel for the defense to a certain article appearing in the Herald-Republican of that date, a daily newspaper published in Salt Lake City, in which was a brief summary of the facts and circumstances leading up to and surrounding the commission of the crime, including the written confession of Thorne, in which the defendant was implicated as one of the parties engaged in the perpetration of the robbery at the time Fassell was killed. On being shown the article, counsel immediately moved the court for a change of venue, and in support of the motion presented the defendant's affidavit, in which it is alleged that at the time the crime in question was committed, and for several days thereafter,
The article referred to, so far as material to the determination of the question under consideration, is as follows:
...
To continue reading
Request your trial-
Emelle v. Salt Lake City
... ... refused to give a requested instruction. Ayer v ... Moon, 59 Ore. 599, 17 P. 991; Giles v. Ternes, ... 143 P. 491, 93 Kan. 140; State v. Riley, 41 Utah ... 225, 230; 126 P. 294; Rio G. W. R. Co. v. Utah Nursery ... Co., 25 Utah 187, 192; 70 P. 859; Fazio v ... Construction ... ...
-
State v. Brown
... ... necessarily limit or circumscribe jury's discretion in ... fixing punishment. State v. Best, supra; State v. Thorne, ... (Utah) 117 P. 58; People v. Kamsunu (Calif.) ... 110 Cal. 609, 42 P. 1090; People v. Bollinger, 237 ... P. 25; Sec. 32-201, W.R.S. 1931; State v. Riley, 126 ... P. 294; State v. Romeo, et al., 126 P. 530; ... State v. Mewhinney, 134 P. 640; 29 U. S. Stat. et L ... 456; Winston v. U. S. 172 U.S. 303; State v ... Carroll, 52 Wyo. 29 ... Under ... plea of guilty to information charging murder in first degree ... where ... ...
-
Herald-Republican Publishing Co. v. Lewis
...challenges in the Thomas Riley case for the same offense last week and, in examining jurors, all of those who were excused for cause in the Riley case were excused the Thorne case. Thorne's appearance in court yesterday was in striking contrast with the appearance of Riley, who was convicte......
-
State v. Anselmo
... ... doctors and business men, who deposed that it was their ... belief that the appellant could and would be given a fair and ... impartial trial. We have frequently held ( State V ... Haworth , 24 Utah 398, 68 P. 155; State V ... Vacos , 40 Utah 169, 120 P. 497; State V ... Riley , 41 Utah 225, 126 P. 294, and cases there ... cited) that the granting or denying of motions for ... continuances and for change of place of trial upon the ground ... of excitement or bias, in the nature of things are, and must ... be, largely within the discretion of the trial court, and ... ...