Sutton v. Fox

• Decision Date: 10 October 1882
• Citation: 13 N.W. 477,55 Wis. 531
• Parties: SUTTOn. v. FOX.
• Court: Wisconsin Supreme Court

55 Wis. 531

13 N.W. 477

SUTTOn.

v.FOX.

Supreme Court of Wisconsin.

Filed October 10, 1882.

Appeal from circuit court, Green Lake county.

J. C. McKenney and W. F. Vilas, for respondent.

G. W. Hazelton and I. C. Sloan, for appellant.

TAYLOR, J.

The appellant assigns but two causes for reversing the judgment rendered against him in this case: First, that four jurors, whose names were drawn from the jury-box during the process of impaneling the jury, were set aside by the court, on the motion of the plaintiff, for reasons stated in the bill of exceptions; and, second, because the testimony of two witnesses was received on the part of the plaintiffs against the objection of the defendant, such witnesses being, at the time their testimony was given, convicts in the state prison serving out a sentence upon conviction of the crime of arson. The objection made to the jurors who were excluded, so far as the record discloses,was undoubtedly made upon the ground that their knowledge of the English language was so limited and imperfect as to make it highly probable that they could not intelligently comprehend the proceedings in the course of the trial. It will be seen from the record that there is no exception taken to the justice of the verdict rendered in the action, nor that any error was committed by the judge in his instructions to the jury, or in his rulings upon the trial as to the admission or rejection of evidence, except as to the evidence of the two witnesses above referred to, nor that the jury which was finally impaneled and sworn, and tried the cause, was not an impartial and fair jury; but the learned counsel for the appellant claims that it was error not to permit the four persons whose names were drawn from the jury-box to be sworn and serve as jurors in the case.

The only statutory provisions regulating the selection and impaneling of jurors are the following, (section 2524, Rev. St.:) “All persons who are citizens of the United States and qualified electors of the state shall be liable to be drawn as jurors, except as provided in these statutes.” The exceptions are found in section 2525. The only part of this section which can have any bearing upon the question before the court reads as follows: “And all persons of unsound mind, or subject to any bodily infirmity amounting to a disability,” are exempted from serving as jurors. Section 2527, Rev. St., provides for selecting the lists of persons from which the juries to try actions at the circuit court shall be drawn; and section 2530 provides that “in preparing such jury list the several supervisors, trustees, aldermen, and county boards shall select such persons only as they know or have good reason to believe are possessed of the qualifications required by law, and are of approved integrity, fair character, of sound judgment, and well informed. Section 2540, Rev. St., directs how the names of the persons to form a trial jury shall be drawn from the jury-box. Section 2541 reads as follows: “The first 12 persons who appear as their names are drawn and called, and who are not lawfully challenged, and are approved as indifferent between the parties, and not discharged or excused, must be sworn and constitute the jury to try the issue. Section 2849, Rev. St.: “The court shall, on request of either party, examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be called and placed in his stead for trial of that cause.” Section 2851, Rev. St., provides that each party to a civil action shall be entitled to three peremptory challenges, and no more, and prescribes how and when the challenges shall be made. Section 2538, Rev. St., provides that, when, by reason of challenge or otherwise, a sufficient number of jurors, duly drawn and summoned, cannot be obtained for the trial of any cause, civil or criminal, the court shall cause jurors, duly qualified, to be returned from the bystanders, or from the county at large, to complete the panel for such trial; and the court may, in its discretion, order a special venire to issue for that purpose, or such jurors may be returned by the sheriff or his deputy, the coroner, or any disinterested person appointed by the court, without writ.” Section 2578, Rev. St., provides that “all writs, process, proceedings, and records in any court within this state shall be in the English language.”

It will be seen that these statutory provisions do not expressly confer upon the trial judge power to exclude from the jury any person whose name is found in the jury-box, and is drawn therefrom in the way prescribed; except as provided by section 2849. The causes for exclusion mentioned in that section are restricted to the relationship of the juror to either of the parties, to the fact that he has formed or expressed an opinion as to the merits of the case, or has some bias or prejudice therein. Clearly this section does not cover the case of a person, whose name is placed upon the jury list, who is unable to speak or understand the English language, who is not a citizen and an elector, who is exempted from service as a juror for any cause, who is deaf, or so sick or infirm as to be unable to sit in the case, who is an idiot or insane, who is afflicted with a contagious or loathsome disease, which would make it improper for him to associate with other men, and is drawn as a juror to try a cause in court. Still, it cannot be denied that the trial court must have the power to exclude such person from the jury. A construction of the law which would deprive the court of the power to purge the jury of such unfit persons would be monstrous. It has been frequently held that the causes of challenge enumerated in a statute are not exclusive of all others. It has been well said “that the grounds of challenge for cause are so various that any attempt to collate them in a statutory provision must necessarily be only partially successful. Causes of a most positive character are liable to arise out of the facts of specific cases, which must result in a failure of justice if the statutory causes only are to be recognized.” Thompson & Merriam on Juries, § 175, and cases cited. Nor do we understand the learned counsel for the appellant to contend for any such construction. Their contention is that it was not made to appear that the persons excluded by the judge were so ignorant of the English language as to justify their exclusion on that ground. That a juror may be excluded for that cause, when it exists, is not denied. To hold otherwise in a court, when the law requires that the proceedings shall be in the English language, would be to render the trial by jury a mockery. That such want of knowledge of the English language is a good ground for excluding a juror, has been determined by every court in which the question has been raised, when the law required that the proceedings of the court should be in the English language, unless the statute of the state, either in express terms or by clear implication, provided that such want of knowledge of the English language shall not be a ground of exclusion. Thomp. & M. Juries, §§ 175, 259; Atlas Mining Co. v. Johnston, 23 Mich. 36;People v. Arces, 32 Cal. 40;State v. Rosseau, 28 La. Ann. 579;State v. Gindry, Id. 630; State v. Push, 23 La. Ann. 14;State v. Gay, 25 La. Ann. 472;State v. Marshall, 10 Smith, Cond. Rep. (Ala.) 240; Plank-road Co. v. Railroad Co. 13 Ind. 90. For reasons peculiar to the people in certain counties in Colorado, it was held by the supreme court of that state that want of knowledge of the English language was not a good reason for setting aside a juror. Trinidad v. Simpson, 22 Alb. Law J. 409; 10 Cent. Law J. 149.

It would seem unnecessary to add authorities to sanction a practice so just and necessary to the proper administration of justice, and which has been recognized and acted upon by all the courts of this state, without objection, from its first organization. As said above, the learned counsel for the appellant do not question the propriety of the exercise of the power in a proper case, but deny that the record discloses any cause for its exercise in this case. Admitting the power of the court to exclude a juror because of his want of knowledge of the English language, it follows that the power must be exercised in the discretion of the presiding judge, and it would require a clear case of the abuse of the power to call for the intervention of this court, Thompson and Merriam, in their work above cited, section 258, say: “The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the...