State v. Wilcox

• Decision Date: 18 February 1895
• Citation: 39 P. 368,11 Wash. 215
• Parties: STATE v. WILCOX.
• Court: Washington Supreme Court

39 P. 368

11 Wash. 215

STATE v. WILCOX.

Supreme Court of Washington

February 18, 1895

Appeal from superior court, King county; T. J. Humes, Judge.

William Wilcox was convicted of manslaughter, and appeals. Reversed.

Hoyt C.J., dissenting.

Frank B. Ingersoll and Melvin G. Winstock, for appellant.

John F Miller and A. G. McBride, for the State.

DUNBAR, J.

In this case the defendant was informed against for murder in the first degree. The case proceeded to trial, and the defendant was convicted of manslaughter. Motion for a new trial and in arrest of judgment was duly made and overruled by the court and defendant sentenced to 20 years' imprisonment in the state penitentiary. From such judgment this appeal is prosecuted.

The first error assigned by the appellant was the ruling of the court in permitting a juror, Charles Kellogg, to serve, over the objection of the defendant, who challenged him for cause on the ground of actual bias. The testimony of the juror on his voir dire was substantially as follows: "Question. Have you formed or expressed any opinion touching the guilt or innocence of the defendant? Answer. I think I have. Q. You think you have? A. Well, I know I have. Q. Have you talked with any one who professed to know the facts of this case? A. Yes, sir. Q. How long since? A. I think it has been about a month ago. Q. Did the parties to whom you talked profess to know the facts of the case? A. I believe not. Q. Did you ever make any personal investigation of the matter? A. No, sir only through the papers. Q. That is all the investigation you have made, is it? A. Well, I could not exactly say it is all the investigation I made, because there is a party I talked with quite frequently, an acquaintance of mine, that I believe was subpoenaed as a witness in the lower court. Q. Did that party with whom you talked profess to know the facts? Did he give the facts to you? A. No, sir; only what he knew about it. Q. Well, from the newspaper articles that you read, did you form in your mind a determined, fixed, and absolute opinion in this matter? A. No, sir. Q. Mr. Kellogg, could you lay aside what impressions or opinions you have formed, and try this case solely upon the evidence, under the instructions of the court? A. I think I could, without doubt. Q. Could you try it with the same degree of impartiality that you could if you had not read these articles in the newspapers,-lay aside that for the time being, and try the case upon its merits? A. I don't know whether I could or not. The conversation that I have had and the impressions that I have formed is to a certain extent- I don't know what the testimony would amount to. Would not like to say exactly what I could do. Q. What I am trying to get at is the condition your mind is in now regarding the material facts of this case,-whether or not you could, if you were selected here as a juror, try this case, lay aside what impressions you have formed, and try this case solely upon the evidence, under the instructions of the court. A. I believe I could." Witness testified that he did not know either the defendant or the person murdered, and his further testimony in chief was a repetition of what we have above cited. The cross-examination was substantially as follows: "Q. Mr. Kellogg, you said, in response to a question put by Mr. Miller, that a witness did detail to you such facts as he (the witness) knew? A. He did; yes, sir. Q. What was his name? A. His name was George Griffin. Q. He is a friend of yours, is he? A. Yes, sir. Q. You talked with him about the case during the preliminary hearing here? A. I don't remember exactly whether it was at the preliminary hearing or a little before. I know that I saw him afterwards, and I know that I talked with him the time he was held here before the preliminary hearing. Q. And he told you at that time the facts relating to this case, so far as he knew them? A. I suppose he did; yes, sir. I don't know that he knew or not. Q. Well, he told you what he was subpoenaed to testify to didn't he? A. Yes, sir. Q. Then you read about the matter in the newspapers? A. Yes, sir. Q. Now, have you formed the opinion that you gave from the newspapers or from what Mr. Griffin told you? A. I have formed it partially through what I have heard from him, and through the newspapers, and in conversation with other people, one way and another. Q. Now, Mr. Kellogg, you said you had an opinion now about the merits of this case? A. Yes, sir. Q. And it would take evidence to remove or change that opinion? A. Yes, sir. Q. Then you feel that if you went into the trial of this case, that, unless there were evidence to remove your opinion that you now have, you would have to act upon the opinion that you have? A. I surely would. Q. Then, if it would take evidence to remove that opinion, you could not be an impartial juror, could you? A. I think I could be guided solely by evidence. I didn't know that the opinion which I already have would have any weight. I suppose it would take contrary evidence to change my opinion. Q. Well, then, if it would take evidence to change your opinion, you would start in the case with your opinion already formed? A. Yes; so far as I know the circumstances of the case, I have formed an opinion. Q. When counsel asked you if you had a fixed and abiding opinion in the case, and you said, 'No,' you meant by that, did you, that it is not such an opinion but what could be changed by evidence? A. That's exactly what I meant. Q. Mr. Kellogg, suppose you were the defendant here in the place of Mr. Wilcox, and was accused of the crime of murder in the first degree, would you be willing to go to trial with a jury of twelve jurors with their mind in the same condition that yours is now? A. I don't believe I would. Q. You don't think you would? A. No, sir." Here the defense challenged the juror for cause, and the court took him in hand, and finally elicited from him the statement that he could try and determine the cause with the same degree of impartiality as he could if he had never heard anything about it, and that he would be able to disregard the opinion that he already entertained. It seems to us that this case falls squarely within the rule laid down by this court in State v. Murphy, 9 Wash. 204, 37 P. 420. There, after an examination of the authorities, and a somewhat extended presentation of the reason for the conclusion reached by the court, it was decided that the court erred in admitting to the jury box a juror who answered substantially as the juror in this case has answered.

Reading reports of the commission of crime in newspapers cannot, of course, in this day of almost universal reading, be regarded as a ground of challenge to a juror, or even casual talk that one may hear on the street or elsewhere concerning the commission of a crime; for people who read or mingle with their fellow men during the excitement that pervades a community when a crime has been committed are almost sure to read newspaper accounts of the commission of the crime, and to hear people talking of the circumstances of its commission. If any juror should swear that if the reports which he had heard were true, whether the reports came from newspapers or from individuals, he believed the defendant guilty or innocent, or that he had made up his mind as to his guilt or innocence, that would be one proposition; but where he answers, in substance, that he has read these reports, and that he has heard this talk, and that he does believe them to be true or untrue, as the case may be, that is altogether another proposition; and that is what this witness substantially testified to, either that he believed them to be true or untrue. If, as he said, he had talked with a friend of his who had been subpoenaed as a witness in the primary examination, and that friend related to him the facts concerning the crime, and from such relation he formed an opinion as to the guilt or innocence of the defendant, and if it is true, as he said, that, if he went into the trial of this case, unless there were evidence to remove that opinion he would have to act upon the opinion which he already entertained, then, certainly, he was not an impartial juror; and if the opinion was that the defendant was...