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

126 P. 294

41 Utah 225

STATE v. RILEY

No. 2193

Supreme Court of Utah

May 20, 1911

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.

McCARTY J. FRICK, C. J., STRAUP, J., concurring.

OPINION

McCARTY, J.

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 evidence showed that the defendant, Thomas Riley, who had previously given his name as James Hayes, with one Henry Thorne and another man by the name of 'Curley,' on the evening of March 26, 1910, had gone to the store of George W. Fassell on Fourth South Street, between Sixth and Seventh East streets, in Salt Lake City, Utah, and had entered there for the purpose of holding up the occupants of the store and of committing robbery. The three men entered the store, Thorne going in first, and with his revolver commanded of Mr. Jacobson, one of the clerks there, that he throw up his hands. The defendant, Riley, followed, and, taking his position near the center of the store, commanded Fassell to throw up his hands. The other man, 'Curley,' stayed in the doorway, and when trouble began he left the place, and has never been apprehended by the authorities. Thorne forced Jacobson back into one corner of the storeroom; and while Riley was covering Fassell with his revolver, and while Fassell had his arms in air, Thorne came to him and told him to stand back in the corner where Jacobson was. Fassell had his eyes on Riley, and, not paying much attention to Thorne, Thorne jabbed him in the side of the ribs and while urging him to get back his revolver was discharged accidentally or otherwise, and Fassell fell to the floor mortally wounded. As Fassell fell to the floor, Thorne stepped around to the cash register, took what money he could, and while he was doing this Jacobson dodged out of the back door of the store, and Riley, then seeing that Jacobson had gone, rushed out of the front door, soon after followed by Thorne. The two made their way uptown, went to the Angeles rooming house, and were arrested. The men were taken to the police station, questioned somewhat that evening by the officers, and the next morning Thorne made a written confession to the chief of police, and Riley, after being questioned for some considerable time by the chief of police and police officers, confessed that he participated in the killing as above stated."

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 (4 Kerr's Cyc. Code, secs. 1066, 1068); 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:

"The last point made by appellant is that the formation of the trial jury in the case was contrary to law. The court followed the rule laid down, under a statute from which ours was copied, by the Supreme Court of California in People v. Scroggins, . . . and which was approved in People v. Russell. . . . Upon the authority of these cases, as well as from the reason drawn from the statute, no error was committed in forming the trial jury for this case."

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 public journals of Salt Lake City published full and detailed accounts of the tragedy alleged and of the parties concerned therein, alleged to have been the parties who perpetrated the alleged crime, . . . and made such strong statements of the evidence and all matters . . . connected therewith that public opinion formed very strongly against this defendant, and considerable excitement was created in the public mind at that time on account of the transaction as alleged in the newspapers, which excitement and public opinion ranged so high that the county officials having this defendant in custody were compelled to remove him from the county jail to the Utah State Prison to prevent him being a victim of mob violence. . . (Reference is here made to the newspaper article mentioned, a copy of which is attached to the affidavit and made a part thereof.) That he has reason to believe, and does believe, that the said Herald-Republican has a large circulation and is extensively read throughout Salt Lake County, and that the article herein referred to and made a part hereof has and will mold public opinion as to render a fair and impartial trial impossible in Salt Lake County. Affiant further believes that by reason of the sentiment heretofore created and revived and extended by the article hereto attached justice cannot be had in Salt Lake County. . ."

The article referred to, so far as material to the determination of the question under consideration, is as follows:

"James Hayes, charged with murder in the first degree for the killing of George W. Fassell the night of March 26th, was brought before Judge T. D. Lewis in the district court for trial yesterday morning. . . Counsel for the prisoner oner announced at the opening of the court that Riley wished to give his true name of Thomas Riley, and on order of the court the alias of James Hayes was changed. . . Riley was not handcuffed, although Deputy...