State v. Vogan
| Decision Date | 09 November 1895 |
| Docket Number | 10325 |
| Parties | THE STATE OF KANSAS v. WILLIAM VOGAN |
| Court | Kansas Supreme Court |
Appeal from Ness District Court.
AT May term, 1895, of the district court of Ness county the defendant was convicted of the crime of rape upon the person of Matilda Hirschler, a female under the age of 18 years, and he was sentenced to the penitentiary for a term of five years. E. H. Ebert, being called as a juror, was examined on his voir dire, and stated, among other things, that he had heard the case talked about on several occasions, the first time being by the county attorney in consultation with the county commissioners when the supposed facts were related; at other times he heard the case discussed, and he told one man what he had heard of the facts. Although he said he had formed no opinion respecting the guilt or innocence of the accused, yet he asserted several times, upon much questioning, that, in order to be acquitted, the defendant must prove himself innocent, and that he had such an abhorrence of the offense charged that it would accord with his feelings to convict unless the evidence satisfied his mind that the accused was innocent. C. H. Monroe, another of the panel, stated on his voir dire that he believed the punishment fixed by law to be too severe for this offense. The defendant's challenge for cause as to each of these jurors was overruled, subject to his exception. E. H. Ebert was challenged peremptorily, but C. H. Monroe served on the jury, and the defendant exhausted all his peremptory challenges.
Judgment reversed and case remanded.
W. F Hague, and H. Fierce, for appellant.
F. B Dawes, attorney general, and N. H. Stidger, county attorney for The State.
OPINION
I. We are of opinion that E. H. Ebert was not competent as a juror. He had heard the county attorney and several other persons discuss the supposed facts, and had related them himself. He entertained very erroneous and deep-seated views respecting his duties as juror in the case, and these were probably strengthened by the overruling of the defendant's challenge for cause. The constitution guarantees to every person charged with crime a trial by an "impartial jury," and, as the defendant exhausted all his peremptory challenges, the error of the court in overruling the challenge of Mr. Ebert for cause must be held material, although he was afterward excused on the peremptory challenge of the defendant. (The State v. Brown, 15 Kan. 400; The State v. Miller, 29 id. 43, 47; The State v. Beatty, 45 id. 492, 499.)
II. As it is enacted by section 201 of the code of criminal procedure that "no person who believes the punishment fixed by the law to be too severe for the offense . . . shall be sworn as a juror," perhaps Mr. Monroe ought to...
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