State v. Stuart, 45617

• Decision Date: 07 November 1970
• Docket Number: No. 45617,45617
• Parties: STATE of Kansas, Appellee, v. Raymond STUART, Appellant.
• Court: Kansas Supreme Court

Page 975

476 P.2d 975

206 Kan. 11

STATE of Kansas, Appellee, v. Raymond STUART, Appellant.

No. 45617.

Supreme Court of Kansas.

Nov. 7, 1970.

Syllabus by the Court

1. Statutes which enumerate certain causes as disqualifying a prospective juror are not exclusive of other causes which may imply disqualifying bias or prejudice of the prospective juror, and such statutes do not deprive courts of their inherent right to declare that such other causes also require dismissal of a prospective juror in order to insure that litigants will have a fair and impartial trial.

2. In a prosecution for burglarizing the property of an organization under the facts and circumstances as detailed in the opinion, membership in the organization constitutes a disqualifying interest on the part of prospective jurors.

3. Persons so closely connected with an organization that they may not be in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party, constitutes a disqualifying interest, and bias may be inferred from interest in the result of the case where the interest is not too minute or too remote.

4. A previous statement by an accused relative to the offense charged is inadmissible if the judge finds the statement was made under threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same. (K.S.A. 60-460(f)(2).)

5. The record in a criminal action is examined, and it is held: For reasons set forth in the opinion, the appellant did not receive a fair trial and a new trial is ordered.

Russell Shultz, Wichita, argued the cause and was on the brief for appellant.

Jerry M. Helberg, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.

OPINION ON REHEARING

FATZER, Justice.

This is an appeal from a conviction of burglary in the second degree (K.S.A. 21-520.) The appeal was first heard in March, 1970, and the opinion was filed April 11, 1970. See State v. Stuart, 205 Kan. 174, 468 P.2d 240.

On May 25, 1970, a rehearing was granted on motion of the appellant. For purposes of rehearing, the parties were requested to file briefs in answer to special questions submitted by the court. Only the appellant filed a brief in conformance. Reargument was had by both parties before the court in the October 1970 Session.

Upon further consideration of the case, the court is now of the opinion that under the facts and circumstances of the case, the appellant did not receive a fair trial, and the opinion filed April 11, 1970, should be and is hereby withdrawn, vacated and set aside.

Only the facts pertinent to the issues discussed in the reargument are stated and the reader is referred to the prior opinion for additional facts of the case.

First, appellant urges reversal for the reason that of the 24 jurors passed for cause, nine were either Elks, Lady Elks, or former members and closely associated with the Elks Club. The 24 jurors were passed before any peremptory challenges were made.

Under the provisions of K.S.A. 62-1412, the court shall cause enough jurors to be called, examined and passed for cause before any peremptory challenges are required, so that there will remain sufficient jurors, after the number of peremptory challenges allowed by law for the case on trial shall have been exhausted, to enable the court to cause twelve jurors to be sworn to try the case.

Absent a request by either party, no specific number must be passed for cause before a defendant exercises his peremptory challenges, however, prospective jurors who are not free from bias, prejudice or interest and who may have admitted to having an opinion in the case should not be passed for cause.

An information alleging an offense against the person or property of another renders that person incompetent as a juror. (K.S.A. 62-1406.) A challenge of a juror for cause may be tried by the court if he is alleged to have been injured by the crime charged. (K.S.A. 62-1410.)

It is fundamental that every litigant is entitled to have his rights fairly and impartially determined, and it is the duty of a trial court to see that a jury of competent, fair and impartial persons is impaneled. (50 C.J.S. Juries § 208a, pp. 944, 945.)

Statutes which enumerate certain causes as disqualifying a prospective juror (K.S.A. 62-1406) are not exclusive of other causes which may imply disqualifying bias or prejudice of the prospective juror, and such statutes do not deprive courts of their inherent right to declare that such other causes also require dismissal of a prospective juror in order to insure that litigants will have a fair and impartial trial. (50 C.J.S. Juries § 208b, pp. 945-947.)

In determining if an implied cause exists for disqualification of a juror, the facts and circumstances of each case must be considered. Of the twelve jurors hearing the case, two ladies (Lady Elks) had connection with the Elks Club although no member of the Elks Club sat on the jury. These persons remained on the jury which tried the case after appellant had exercised the six peremptory challenges allowed by law. It is urged that nine persons of the initial 24 should not have been passed for cause for the reason they had connection with and interest in the outcome of the case.

There is no doubt but that the Elks Club had an interest in the outcome of the prosecution. The state's case was presented on behalf of the Elks Club, in part, by...