State v. Russell

• Decision Date: 17 April 1893
• Citation: 32 P. 854,13 Mont. 164
• Parties: STATE v. RUSSELL.
• Court: Montana Supreme Court

32 P. 854

13 Mont. 164

STATE v. RUSSELL.

Supreme Court of Montana

April 17, 1893

Appeal from district court, Yellowstone county; George R. Milburn Judge.

Samuel Russell was convicted of murder in the second degree, and appeals. Affirmed.

Middleton & Light, for appellant.

Henri J. Haskell, Atty. Gen., for the State.

PEMBERTON C.J.

The appellant was convicted of the crime of murder in the second degree at the September term, 1892, of the district court of the seventh judicial district in the county of Yellowstone and on the 8th day of October, 1892, was, by the judgment of said court, sentenced to imprisonment in the state prison for a term of 25 years. The appellant moved the court for a new trial, which was denied. From the order refusing a new trial and from the judgment of the court, this appeal is prosecuted.

The first important error assigned is the refusal of the court below to grant appellant's petition for a change of venue from Yellowstone county. It appears that after the trial had commenced, and considerable progress had been made in an effort to obtain a jury, the counsel for appellant came to the conclusion that a fair trial could not be had in said county, and presented a petition for a change of venue, based upon the alleged "interest, prejudice, and bias of the people of said county." This petition was supported by the affidavit of two of the counsel for the appellant. This affidavit is to the effect that during the time an effort was being made to procure a jury a large number of persons were called into the jury box, and examined as to their qualifications to act as jurors in the case; that a large proportion of such persons, upon said examination, stated that they had formed and expressed decided opinions as to the guilt or innocence of the prisoner at the bar; that such statements by such persons on their examination, made in the presence of the jurors in the box who had not been challenged for cause, had the effect, in affiants' opinion, to prejudice such jurors as were in the box against the appellant to such an extent as to prevent his having a fair trial before such jury; that the inhabitants of Billings were especially hostile to the appellant, and prejudiced against him to such an extent that, in the opinion of affiants, he could not have a fair trial; and that the prejudice of the inhabitants of Billings was likely to be so communicated to persons summoned as jurors from its immediate vicinity as to prevent them from according appellant a fair trial, if accepted as jurors in the case; that there was considerable unfriendly talk among the people of Billings against appellant; and that for these reasons affiants believe the prisoner could not have a fair trial in that county. The court also heard oral evidence of other witnesses to substantially the same effect. To meet this evidence the court examined each juror in the box, as to whether or not the examination of persons called as jurors in their presence had an effect in prejudicing their minds against the prisoner. Each of said jurors answered in the negative. The court, in addition thereto, of its own motion, offered to excuse from the jury all persons who resided in Billings; two such persons being in the box. To this offer the counsel for the appellant objected. If it is true, as contended by appellant, that in criminal cases, where a large number of persons are examined, in the presence of each other, as to their qualifications to sit as jurors, and a large or any portion of them state that they have formed or expressed such opinion as to the guilt or innocence of the person to be tried as to disqualify them as jurors, it shall be considered as a sufficient reason to prejudice those who have no opinions, and thus disqualify them from being considered fair and competent jurors, then we are at a loss to know how a jury can ever be organized in any important criminal cases in any community. In almost every important criminal case a very large proportion of the people living in the immediate vicinity of the place where the crime is alleged to have been committed form such opinions, from becoming familiar with the facts, as to disqualify them from acting as jurors in the trial of the case, and these opinions are as likely to be favorable as hostile to the accused. But how can it be rightfully contended that the examination of such persons and their statements that they have such disqualifying opinions, in the presence of persons who do not have such opinions, will prejudice and disqualify those that are free from such disqualifications to such an extent as to endanger a fair trial of the person accused of the crime? We do not think this position can be sustained by reason or law. The court seemed to have taken every necessary precaution to assure the appellant a fair trial in this respect. And the verdict of the jury, finding the appellant guilty of murder in the second degree, and leaving the punishment to be fixed by the court, when they could, if so inclined, for any reason, have assessed his punishment at imprisonment for life, tends to show that the appellant and his counsel were mistaken as to the prejudice alleged as a ground for change of venue, and that the view of the court was justified in its ruling in this regard. We are unable to see that the court below abused that sound judicial discretion required of trial courts in such proceedings. The law governing change of venue is well settled in this...