State v. Rutten

• Citation: 43 P. 30,13 Wash. 203
• Parties: STATE v. RUTTEN.
• Decision Date: 11 December 1895
• Court: United States State Supreme Court of Washington

43 P. 30

13 Wash. 203

STATE v. RUTTEN.

Supreme Court of Washington

December 11, 1895

Appeal from superior court, Kitsap county; John C. Denney, Judge.

Servius Rutten was convicted of murder, and appeals. Reversed.

Hoyt C.J., dissenting.

H. E. Shields and John K. Brown, for appellant.

J. B Yakey, Pros. Atty., for the State.

DUNBAR J.

The appellant was convicted of murder in the first degree in the superior court of Kitsap county, and sentenced to be executed, and from such judgment he has appealed to this court.

The first assignment of error by the appellant, viz. that he is entitled to trial by a panel of jurors drawn by the county commissioners for the year 1894, we think was decided adversely to appellant's contention in State v. Krug (Wash.) 41 P. 126.

The next contention is that the court erred in overruling the appellant's challenge to the jurors Denniston, Greene and Stark. All these jurors were peremptorily challenged by appellant after the refusal of the court to sustain challenge for cause, but the record shows that the appellant exhausted all his peremptory challenges; and, if the court wrongfully compelled him to exhaust peremptory challenges on jurors who should have been dismissed for cause, his rights were invaded as much as though the jurors had been accepted after his peremptory challenges were exhausted, so that the question must be considered with reference to the qualifications of these jurors. The first juror mentioned, viz. Denniston, in reply to the question, "Have you an opinion as to the guilt or innocence of this man Rutten?" answered "I think I have," and stated that he had formed such opinion from articles that he had read in the newspapers. He also stated that he could not say that he could be governed entirely by the evidence that was brought forward in the case. This was on direct examination. On his cross-examination he stated that these articles had made an impression upon his mind as to the guilt or innocence of the defendant, and, if the man who was being tried was the man who did the killing, then he should have an opinion. In this case it was conceded that the man who was being tried was the man who did the killing. A great many of the ordinary questions indulged in upon such occasions were indulged in here, and the court finally asked the witness the following question: "If you were on trial for your life for the crime of murder in the first degree, would you be willing to be tried by twelve men who felt towards you and your case as you do towards this defendant and his case would you feel safe to be tried by twelve men?"-to which question the juror answered, "I would," whereupon the court denied the challenge. During the examination in chief of Juror Greene the following colloquy occurred: "Q. Have you formed or expressed any opinion as to the guilt or innocence of this defendant? A. I have. Q. Have you such an opinion at the present time? A. Well, it has not been changed, sir. Q. Would it require evidence to remove that opinion? A. It would. Q. From what did you form that opinion? A. From what I heard and read." Witness then, in response to the leading question asking him if he did not think he could sit upon the jury, and give this defendant a fair and impartial trial, answered that he could. Upon the cross-examination the following testimony was given: "Q. You did form an opinion? A. I did. Q. Still have that opinion, have you? A. Certainly. Q. That is, as to the guilt or innocence of the defendant? A. Yes, sir. Q. You say it would take evidence to remove that opinion that you now have? A. It would. Q. Take strong evidence to remove that opinion, would it? A. It would take evidence." Then the question was asked the witness, if he was on trial for his life, if he would be willing to be tried by 12 jurymen who felt towards him as he felt towards the witness, the defendant in this case, and he answered that he would, and the court refused the challenge. The juror Stark stated in answer to questions on direct examination, that he had an impression; that it was an impression it would take evidence to remove; that he had such an impression yet; but finally stated that he could sit in the case, and give defendant a fair and impartial trial, without reference to the opinion that he entertained. On cross-examination he stated that he had read an account of the murder in the papers, and had heard the matter frequently discussed among the people in the neighborhood of the murder, and reiterated that he had an impression in regard to the guilt or innocence of the defendant. When asked to define the difference between an impression and opinion, he answered, "Well, my idea of an impression is to give it all the credit it is worthy of until I know something different. An opinion should be, in my judgment, based upon proof of the facts in the case." Strictly construed, the juror's idea of an impression was simply a prima facie opinion. After some further cross-examination, the following occurred: "Q. And then it would take evidence to remove that impression, would it not? A. I think so. Q. It would take pretty strong evidence to remove the impression, would it not? A. Well, conclusive." Whereupon the defendant challenged the juror for cause. The redirect examination elicited the usual reply that the opinion that the juror entertained was not such an opinion as would prevent him from sitting on the case and giving the defendant a fair and impartial trial on the law and the evidence, and the stereotyped question was asked him whether, if he was charged as the defendant was, he would be willing to have 12 men try his case who were of the same mind that he was, and he answered that he would be willing to risk his case under the same circumstances. The counsel for the state then asked him, "Would you go into the jury box with a presumption that he was innocent until the state had proven him guilty beyond a reasonable doubt?" The answer was, "No, I am under the impression that there is something wrong." The challenge of this juror was finally overruled by the court. It seems to us that when the juror answered the last question in the manner in which he did the challenge should at once have been sustained, for, notwithstanding the subsequent assertion of the juror that he could try the defendant, and accord to him the presumption of innocence he was entitled to under law, he had already stated in plain terms that he would not go into the jury box with a presumption that the defendant was innocent until the state had proven him guilty, for the reason that he was satisfied that there was something wrong. In this case three jurors admitted that they had formed opinions, that that opinion existed with them at the time of their examination, and that it would take evidence to remove such opinion; and the final announcement by the juror, under leading questions by the court and by the attorney for the state, which plainly indicated to the jurors what answer was expected of them, will not outweigh the deliberate statement they made of their own free will, uninfluenced by leading questions, that they had opinions in regard to the guilt or innocence of the accused which it would take evidence to remove, and especially when it was announced as by the juror Stark that he believed there was something wrong, and that he could not go into the jury box and accord to the defendant the presumption that he was innocent until he was proven guilty. While the statute gives to the court the right to determine the question of the impartiality of the juror, yet, this being a constitutional right, this court will review the discretion of the lower court in passing upon this question; and from the whole of the examination of these jurors, and especially Juror Stark, we are satisfied that the right of the defendant to be tried by an impartial...