State v. Thorne
| Decision Date | 18 June 1912 |
| Docket Number | 2351 |
| Citation | 41 Utah 414,126 P. 286 |
| Court | Utah Supreme Court |
| Parties | STATE v. THORNE |
Rehearing denied August 16, 1912.
APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.
Harry Thorne was convicted of murder and he appeals.
AFFIRMED.
M. E Wilson, E. A. Walton and Bismark Snyder for appellant.
A. R Barnes, Attorney-General, and E. V. Higgins and Geo. C. Buckle, Assistant Attorneys-General, for the State.
This is the second appeal by appellant. Upon the former appeal the judgment of conviction was reversed. Upon the second trial he was again convicted of murder in the first degree by shooting one George W. Fassell, and sentenced to suffer death. The evidence on the second trial (with the exception of the objectionable cross-examination referred to in the former opinion, which was entirely omitted) was practically the same as it was on the first trial. The material facts are fully stated in the opinion written by Mr. Justice Straup on the first appeal in 39 Utah 208, 117 P. 58, and for that reason we shall not make a statement of facts at this time.
Referring to the assignments of error in the order in which they are presented by appellant's counsel in their brief, the first one to be noticed relates to alleged errors in impaneling the jury, which arose as follows:
Comp. Laws 1907, sec. 4161, defines murder in the first degree as follows:
"Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life--is murder in the first degree."
Section 4162 provides:
"Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the state prison for life, in the discretion of the court."
On the former appeal section 4162 was under consideration, and we there held that the question of recommendation is one for the jury, and that the court is not authorized to direct or admonish them in its charge with regard to what should control or influence them in reaching the conclusion upon the question of whether they will make a recommendation or not. We are still satisfied with the conclusion there reached upon that subject. The very language of the statute implies that the question of whether a recommendation shall be made or not is alone for the jury to determine. What may influence or induce them in making a recommendation is a matter with which the statute does not concern itself. This is made plain from the fact that the court is not bound to follow the recommendation of the jury, even though one be made. If the jury, therefore, for an inadequate reason, or for no reason at all, arbitrarily recommend the milder punishment in a case where the facts and circumstances clearly call for the maximum penalty the court then may exercise its discretion and refuse to follow the recommendation. But this is the only power the court has with regard to the recommendation contemplated by section 4162, supra.
There are, however, several other provisions of our statute that are deemed material to the determination of appellant's assignment now under consideration. Section 4833, so far as material, provides that it shall be cause for challenge for bias if the "existence of a state of mind on the part of a juror leads to a just inference in reference to the case that he will not act with entire impartiality." Section 4834, among other things, provides that "if the offense charged is punishable with death," and the juror entertains conscientious opinions against the infliction of death, and, further, if the juror has "a belief that the punishment fixed by law is too severe for the offense charged," that this shall be cause for challenge for implied bias.
The transcript of the proceedings relating to the examination of jurors on their voir dire covers 770 typewritten legal cap pages. In addition to the numerous questions propounded to jurors with respect to whether each juror was free from either express or implied bias, appellant's counsel also devoted much time and directed numerous questions to each juror to ascertain his state of mind upon the question of making a recommendation, in case appellant should be found guilty as charged in the information. The examination upon that subject is so voluminous and varied that it is not practical to set it forth even in substance. Not only counsel on both sides interrogated the jurors, but the court at times also felt it necessary to do so, in order to get at the juror's true state of mind. Counsel for appellant, however, in a final question to one of the jurors very nearly reflected their views upon the question under consideration, and for that reason we shall copy that question in full. It is as follows:
"I will ask you, Mr. Dunyan, whether in all cases . . . where it is shown by the evidence that the defendant is guilty of murder perpetrated in an attempted commission of robbery, whether in all such cases you would be decidedly in favor of inflicting the death penalty when the proof was clear, without any consideration of the recommendation?" The juror answered: "Yes, sir." The juror was challenged upon the ground that he would not act with entire impartiality, and "that he would refuse to consider the question of recommendation." The court overruled the challenge.
We remark that we cannot agree with counsel that the juror in question showed a state of mind that in every case of murder in the first degree he would refuse to consider the question of a recommendation. When considering all that the juror said upon the subject, it is clear that in his judgment all murders that are committed in the perpetration of robbery, when the proof of guilt is clear, should be punished by the infliction of the maximum penalty, namely, death. The juror, however, admitted that there may be instances of first-degree murder that might call for a milder punishment; but he was clearly of the opinion that those committed as is stated above, where the proof was clear, did not come within this latter category. Counsel argue that, in view that the statute permits the state to challenge all jurors who entertain conscientious scruples against the infliction of the death penalty, therefore the appellant should also have been permitted to challenge for cause all jurors who were unqualifiedly in favor of inflicting the death penalty as a punishment for murder committed while in the perpetration of robbery. We cannot yield assent to such a proposition. The statute fixes the penalty for first-degree murder as death, unless the court should, in its discretion, follow the recommendation of the jury, if they make one, that the punishment shall be imprisonment for life. A person who has conscientious scruples against enforcing the statute is therefore clearly not a competent juror. The state excuses him upon the ground that his conscientious scruples disqualify him from giving full scope and effect to the law. The statute therefore wisely provides that in case one has conscientious scruples against enforcing the death penalty in first-degree murder "he must neither be permitted nor compelled to serve as a juror." We have already held on the former appeal that there is no power lodged in any court to influence or control, much less to direct, the jury with regard to whether they shall or shall not make a recommendation, or what facts or circumstances they shall consider in determining whether they will make a recommendation or not. If our conclusions in that regard are sound, and we think they are, we think it follows as a necessary corollary that the court has no right to excuse a juror for cause, upon the sole ground that he may be in favor of enforcing the law with regard to punishment in first-degree murder which is committed in the perpetration of robbery without a recommendation on his part.
Counsel concede that they had no legal right to state to the juror what they claimed the evidence would show, and upon such a hypothetical case elicit from him a statement of whether he would be in favor or against a recommendation in the particular case. They do claim, however, that they had a legal right to interrogate the juror with regard to whether he would or would not fairly consider the question of whether a recommendation should be made or not. Conceding this much for argument's sake, yet the challenge for cause must fail. We are not combating the contention that counsel cannot, within reasonable bounds and by proper questions seek to ascertain the state of the juror's mind with regard to whether there may not be circumstances under which he believed it proper and would consider the question of recommendation, although he found the defendant guilty of murder in the first degree. This inquiry, however, should be permitted only for the purpose of enabling the accused to exercise his peremptory challenges intelligently. In this case the trial court gave the accused all the latitude in this regard that any fair-minded man could claim. Indeed, we think the court could have materially curtailed the examination without infringing upon any legal rights of appellant. No hard and fast rule can be laid down in this regard, however, and the court must be guided by the personality of the juror and by other circumstances. The...
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