State v. Russell

• Decision Date: 22 April 1925
• Docket Number: 5663.
• Citation: 235 P. 712,73 Mont. 240
• Parties: STATE v. RUSSELL.
• Court: Montana Supreme Court

235 P. 712

73 Mont. 240

STATE v. RUSSELL.

No. 5663.

Supreme Court of Montana

April 22, 1925

Appeal from District Court, Beaverhead County; Jos. C. Smith, Judge.

C. D Russell was convicted of statutory rape, and he appeals. Affirmed.

Galen J., dissenting.

W. G Gilbert and T. F. McFadden, both of Dillon, for appellant.

L. A Foot, Atty. Gen., A. H. Angstman and I. W. Choate, Asst. Attys. Gen., for the State.

MATTHEWS J.

On the trial of defendant for statutory rape, four prospective jurors disclosed on voir dire examination that they had served as jurors in a case theretofore tried in which one Chambers had been convicted of a like offense against the complaining witness in the case at bar. A challenge for cause on this ground was interposed to each and by the court overruled. On further examination each of these prospective jurors then answered that he had heard the complaining witness state, in the Chambers Case, that she had had sexual intercourse with the defendant in this case. Each, however, testified unequivocally that he had neither formed nor expressed an opinion as to the guilt or innocence of this defendant, and that he could fairly and impartially try the case solely upon the evidence adduced on the trial and the law as given by the court. The challenge to each of these jurors was, after such further examination, renewed and again denied. Defendant duly excepted to the rulings of the court, and thereafter exhausted his peremptory challenges without withdrawing these four jurors. On submission of the case to the jury, defendant was found guilty. He moved for a new trial, which motion was denied. This appeal is from the judgment and from the order overruling the motion for a new trial.

Error is predicated upon the court's action in denying each of the several challenges for cause; in denying the motion for a new trial, and in pronouncing judgment against defendant. The specifications of error, however, present but two questions, which are propounded by counsel for defendant in their brief as follows: "(1) Is a juror, who served on the trial of a prosecution for statutory rape, disqualified to serve on a subsequent prosecution against another defendant for a similar offense, where the testimony of the same prosecuting witness is relied upon to sustain the prosecution in each case?"

"(2) Is a juror, who has served on a trial of a prosecution for statutory rape, disqualified to serve in a subsequent prosecution against a different defendant, for a like offense, though the defenses are distinct, where evidence of the guilt of the latter defendant was before the jury in the first prosecution?"

Of course, the nature of the charge is immaterial; the same rules of law must be applied in the selection of a jury on a trial of the charge of statutory rape as on any other criminal prosecution. The question is merely, What grounds of challenge for cause may be successfully urged in any criminal case? The Legislature has attempted to state all of such grounds. These are divided, by section 11957, Revised Codes of 1921, into "general" and "particular" causes for challenge; we are concerned here with the second division only.

"Particular causes of challenge are of two kinds-1. For such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this Code as implied bias. 2. For the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, which is known in this Code as actual bias." Section 11959, Rev. Codes 1921.

Section 11960 designates the causes of challenge for "implied bias," among which are:

"4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information. 5. Having served on a trial jury which has tried another person for the offense charged. 6. Having been one of a jury formerly sworn to try the same charge. * * * 7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense."

Section 11962 requires that:

"In a challenge for implied bias, one or more of the causes stated in section 11960 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 11959 must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him."

Of the conditions set forth in the two questions propounded by counsel, if they be causes for challenge, the first would come under the definition of "implied bias," the second under that of "actual bias."

1. It will be readily seen, by a comparison of the alleged cause for challenge in the first question presented with the above-quoted causes of challenge for "implied bias," that the challenge did not allege any one of the statutory causes, and therefore does not comply with the requirement of section 11962, that "one or more of the causes stated in section 11960" must be alleged. The general rule on this precise challenge, with no exception stated nor contrary decision cited, is laid down in Corpus Juris, as follows:

"A juror is not incompetent because he has previously served upon the trial of another defendant charged with a separate and distinct offense, although of the same character, and proved by the same witness or witnesses" (35 C.J. 325,§ 345),

-and is upheld in the following cases: State v. Van Waters, 36 Wash. 358, 78 P. 897; Bailey v. State, 56 Tex. Cr. R. 226, 120 S.W. 419; Irvine v. State, 55 Tex. Cr. R. 347, 116 S.W. 591; Fletcher v. Commonwealth, 106 Va. 840, 56 S.E. 151; Rose v. Commonwealth, 106 Va. 850, 56 S.E. 151; Turner v. State, 114 Ga. 421, 40 S.E. 308; People v. Albers, 137 Mich. 678, 100 N.W. 908; Venn v. State, 85 Tex. Cr. R. 151, 210 S.W. 534.

The case of State v. Van Waters, supra, is practically identical with the case before us. The court, after stating that a juror who served upon the trial of another person for the same offense would be disqualified, continued:

"But no such condition appears in the case before us. These were two distinct and separate crimes, committed at different times, having no relation, one with the other, save that they were of the same character and were committed on the same person. A juror, who had been convinced of the guilt of the defendant in the first, could not, from that fact alone, have any knowledge or opinion as to the guilt or innocence of the defendant in the second, and, of course, would not be disqualified for that reason."

In Fletcher v. Commonwealth, supra, the court said:

"The mere fact that members of the panel had at the same term of the court tried similar cases proved by the same witnesses who testified against him does not of itself constitute error."

Counsel for defendant cite the following authorities as supporting the contrary rule: Priestly v. State, 19 Ariz. 371, 171 P. 137, 3 A. L. R. 1201; State v. Hammon, 84 Kan. 137, 113 P. 418; Roberts v. State, 4 Ga.App. 378, 61 S.E. 497; Green v. State, 54 Tex. Cr. R. 3, 111 S.W. 933; Hardgraves v. State, 61 Tex. Cr. R. 422, 135 S.W. 144. These cases, however, while containing language sustaining counsel's contention, support, and seem to have been decided under a different rule laid down in Corpus Juris, and under which the Priestly Case is cited as supporting the rule; the Hammon Case being cited in the Priestly Case for the same purpose. This rule being a corollary to the rule last quoted; i. e.:

"As a general rule, however, where the two cases arise out of the same transaction and involve the same issues or are determined by the same evidence, the juror is incompetent."

Thus, in the Priestly Case, the court said:

"Having passed upon the credibility of witnesses in a similar case upon substantially the same testimony, and having theretofore rendered a verdict on their oaths, it is not to be believed that they could sit upon this case with such an opinion previously formed without it influencing their action."

"So connected and mingled were these offenses and the circumstances related by the witnesses that the trial of the case of Duff was practically a trial of the case of Priestly."

Likewise in the Hammon Case, which was a rape case in which the evidence showed that the two defendants had each committed the crime charged while the two were riding in a hack with two girls, the court based its ruling on its statement that-

"Going back, as this trial did, almost if not entirely of necessity to the beginning of the drive, it might be said that to quite a material extent the trial of appellant was a retrial of V., so connected and mingled were the two offenses and the facts and circumstances surrounding them."

In the Roberts Case, on voir dire examination, counsel for defendant offered to show that one Cooper was the only witness relied upon by the state for a conviction in a liquor case, that he had previously testified in two like cases in which he had been impeached, and the same impeaching evidence would be introduced in this case, and on this showing desired to interrogate jurors who had served on the other cases as to whether they had already determined whether the witness was worthy of...