State v. Thomey, 6586
| Decision Date | 21 December 1939 |
| Docket Number | 6586 |
| Citation | 61 Idaho 60,97 P.2d 659 |
| Parties | STATE, Respondent, v. HENRY THOMEY, Appellant |
| Court | Idaho Supreme Court |
JURY-GROUNDS FOR CHALLENGE.
1. Where, on voir dire examination, juror freely admitted his ill feeling and animosity toward one of accused's counsel, but disclaimed any prejudice or ill feeling toward accused, and asserted that juror could render a fair and impartial verdict, and that he would not visit his ill feeling for counsel on counsel's client, action of court in denying challenge to juror was not error. (I. C. A., secs 19-1919, 19-1920.)
2. The fact that a juror entertains ill feeling for counsel for one side or the other of a case is not ground for challenge to such juror for bias, since feeling of bias or prejudice must be directed at the case or to either of the parties. (I. C A., secs. 19-1919, 19-1920.)
3. Where a juror entertains ill feeling for counsel but not counsel's client, the trial court has a wide discretion and should not retain a juror whose admitted prejudice against counsel appears likely to influence his verdict against the counsel's client. (I. C. A., secs. 19-1919, 19-1920.)
4. Specification of error that the verdict and judgment of conviction are against the evidence and are not sustained thereby was ob- jectionable because of failure to point out in what particular the evidence was insufficient. (I. C. A., secs. 7-509, 19-2302.)
5. Evidence sustained conviction for crime of maintaining a liquor nuisance.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.
Judgment of conviction for crime of maintaining liquor nuisance. Defendant appealed. Affirmed.
Affirmed.
Chapman & Chapman, Lionel T. Campbell and Paul S. Boyd, for Appellant.
Where a juror's feeling of animosity against counsel for defendant is such that such juror would not want a juror sitting in his case were he a defendant, who entertained the same feeling against his counsel, it certainly cannot be urged that such juror could or would act fairly and impartially as a trial juror, and it was error for the court to overrule challenge interposed to such juror. (Seaton v. State, 106 Neb. 833, 184 N.W. 890, 19 A. L. R. 1056; United States v. Smith, F. Case No. 16342a; People v. Troy, 96 Mich. 530, 56 N.W. 102; People v. Mol, 137 Mich. 692, 100 N.W. 913, 4 Ann. Cas. 960, 68 L. R. A. 871; Smith v. State, 16 Ga.App. 299, 85 S.E. 207; Clark v. Smith, 44 Tex. Cr. Rep. 536, 72 S.W. 591; Obenchain v. State, 35 Tex. Cr. Rep. 490, 34 S.W. 278.)
J. W. Taylor, Attorney General, R. W. Beckwith, E. G. Elliott, Lawrence B. Quinn and D. W. Thomas, Assistant Attorneys General, for Respondent.
This is an appeal from a judgment of conviction for the crime of maintaining a public nuisance,--unlawfully establishing and using a certain building in and at which to sell and give away alcoholic liquors. Appellant operated a place in Buhl known as the Midget Lunch, situated in a small brick building; the north half being used by appellant as a restaurant, the south half by his son as the Midget Bar. Several witnesses testified to there being a "nice display of liquor" on the back bar and of their purchases, some by the drink, others by the bottle from bar tenders. One witness testified to purchasing drinks ("Whiskey sour") directly from appellant at this bar. The 1937 license to operate the beer parlor was made out to Henry Thomey, Junior. October 3, 1937, appellant was arrested and brought before a justice of the peace; after preliminary examination he was held to answer in the district court. Demurrer to the amended information, stating thirty-one grounds therefor, was denied and overruled by the court February 3, 1938. Appellant's demand for a jury of twelve men was denied and six jurors were chosen and sworn.
This case appears to be disposed of by the decision in State v. Conner, 59 Idaho 695, 89 P.2d 197. The Conner case was tried by the same Judge (Hon. T. Bailey Lee) who tried the case at bar. The Conner case was tried April 18th, whereas the present case was tried April 14th. In State v. Conner, appellant presented forty-eight assignments of error, all of which were disposed of by this court adversely to the contention of appellant. In the present case the errors alleged cover substantially the same issues in twenty-six assignments. We are satisfied with the correctness of the opinion in State v. Conner, supra, and would consequently not be justified in reviewing the same issues again.
One error has been assigned here, however, which does not appear to have been considered in the Conner case. viz., that the court erred in denying appellant's challenge to the Juror Beals. On the voir dire examination of this juror, it developed that the juror entertained a very harsh feeling toward one of appellant's counsel. This antagonism apparently grew out of a case which counsel had prosecuted against the juror some years before. The juror very freely admitted his ill feeling and animosity toward counsel but disclaimed any prejudice or ill feeling toward appellant; and asserted, under examination, that he could render a fair and impartial verdict in the case, and that he would not visit his ill feeling for counsel on counsel's client. At one place in his examination he responded to counsel: "I'm absolutely neutral as far as the defense is concerned"; and at another place he said: "I would certainly make my decision on the evidence as I see it."
The fact that a juror entertains ill feeling for counsel on one side or the other of a case, is not ground for...
To continue reading
Request your trial
- State v. Peterson
- State v. Marshall
-
Marks v. Strohm
...although they do not comply with the requirements of the rules (Rule 52; sec. 7-509, I. C. A.; see, also, State v. Thomey, 61 Ida. 60, 63, 97 P.2d 659), in specifying insufficiency of evidence are evidently intended to raise the issue of insufficiency of evidence to support the findings and......