Territory of Arizona v. Chartz

• Decision Date: 26 January 1893
• Docket Number: Criminal 71
• Citation: 32 P. 166,4 Ariz. 4
• Parties: TERRITORY OF ARIZONA, Plaintiff and Respondent, v. JOHN CHARTZ, Defendant and Appellant [*]
• Court: Arizona Supreme Court

32 P. 166

4 Ariz. 4

TERRITORY OF ARIZONA, Plaintiff and Respondent, v. JOHN CHARTZ, Defendant and Appellant ^[*]

Criminal No. 71

Supreme Court of Arizona

January 26, 1893

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Edmund W. Wells Judge.

Reversed.

Herndon & Hawkins, James H. Wright, and R. M. Ling, for Appellant.

Upon the proposition that it was error for the court to summon a special grand jury the following cases are cited: Wilson v. State, 32 Tex. 112; Vanhook v. State, 12 Tex. 252; Hudson v. State, 40 Tex. 13; Jackson v. State, 11 Tex. 252; State v. Foster, 9 Tex 66; State v. Jacobs, 6 Tex. 100; American Criminal Law, (Wharton, 5th ed.), secs. 468, et seq.; Bishop on Criminal Procedure, secs. 748-749; Daniel v Bridges, 73 Tex. 150, 11 S.W. 121; People v. Devins, 46 Cal. 46; People v. Williams, 43 Cal. 344; People v. McDonell, 47 Cal. 134; People v. Ah Chung, 54 Cal. 400.

The juror Martin Crouse, upon his examination as to his qualifications as a juror, by his answers to the questions put to him, brought himself clearly within the rule. After the trial we filed the affidavit of Bennett, a citizen of Yavapai County, stating that Crouse had said that he believed the defendant was guilty. An affidavit of defendant was also filed stating that defendant had not known of this previous to the trial. The affidavit of Mr. Bennett was not controverted or denied in any way, either by the juror Crouse, or any one in his behalf, and the said juror was wholly disqualified under the law to serve in this case. Pen. Code, par. 1624, subd. 13; State v. Brown, 15 Kan. 304.

Under the law the defendant is entitled to have every juror before whom he is tried perfectly free from bias and prejudice; further, that each juror should be of such a condition of mind as to act with entire impartiality, and particularly is this so in murder trials. Cancemi v. People, 16 N.Y. 501; Ray v. State, 15 Ga. 223; People v. Williams, 6 Cal. 207; Schoeffler v. State, 3 Wis. 823.

Robert Brown, District Attorney, and Baldwin & Johnston, for Respondent.

Sloan, J. Gooding, C. J., and Kibbey, J., concur.

OPINION

The facts are stated in the opinion.

SLOAN, J.

The defendant was indicted, tried, and convicted in the district court of Yavapai County for the crime of murder. His motion for a new trial having been overruled, defendant appeals to this court. Numerous errors are assigned, the more important of which we will consider.

A challenge was interposed by the defendant to the panel of grand jurors which found the indictment upon which the defendant was tried, upon the ground that the jurors were not drawn from the regular jury list on file with the clerk, but were summoned by an order of the court, on application of the district attorney, from the body of the county. The record discloses that at the opening of the court a grand jury was in attendance, which, by the order of the judge duly made and entered, had been drawn and summoned as provided by paragraphs 2184 and 2185, inclusive, of the Revised Statutes. Said grand jury, after serving as such, was discharged by order of the court. Subsequently, and during the term another grand jury was summoned on an open venire, impaneled, and charged by the court. The indictment on which the defendant was tried and convicted was found by this special grand jury. The contention of the defendant is, that the latter grand jury was illegal, for the reason that the court had no power to order a grand jury otherwise than is provided in said paragraph 2184 of the Revised Statutes. We are unable to interpret the statutes as limiting the power of the court in calling a grand jury to the one mode provided in said paragraph. At common law, a court possesses the power of directing the summoning of a grand jury upon an open venire whenever, in the discretion of the court, it be found necessary. The statutes ought not, therefore, unless the legislative intention appears otherwise, to be so construed as to deprive the court of this power. Mackey v. People, 2 Colo. 13; Levy v. Wilson, 69 Cal. 105, 10 P. 272; Wilson v. State, 32 Tex. 112; White v. People, 81 Ill. 333; State v. Marsh, 13 Kan. 596. Paragraph 2184 provides that the judge "may, in his discretion, order drawn a grand jury from the regular list." Again, paragraph 2196 provides that "where jurors are not drawn and summoned in the manner hereinbefore prescribed to attend any district court, or a sufficient number fail to appear, such court may, in its discretion, order a sufficient number to be drawn forthwith and summoned to attend said court; or it may, by an order entered on its minutes, direct the sheriff of the county forthwith to summon as many good and lawful men of his county to serve as grand or trial jurors as the case may require." We think it plain from the foregoing provision of the statute that it is left to the discretion of the court either to order a grand jury to be drawn from the regular grand jury list or to be summoned upon an open venire from the body of the county, as was done by the court in this case.

As to the challenge interposed by the defendant to the juror Bowder, we think, from the answers of the witness, given upon his examination on voir dire, that the challenge was well taken, and that he should have been excluded from the jury. The record, however, discloses that the juror was excused at some time before the jury was sworn, but whether by the defendant or the territory does not appear. Before we could find this ruling of the court to have been reversible error the record should disclose that the defendant exhausted his peremptory challenges upon the panel, and that he was compelled to exercise one of them upon the objectionable juror, otherwise it must be presumed that the defendant was not injured by the ruling of the court.

One of the grounds upon which the defendant relied in his motion for a new trial was the disqualification of one of the jurors which did not appear until after the trial. In support of his motion defendant produced and read the affidavit of one Charles Bennett to the following effect: That some time prior to the trial of the defendant he, Bennett, had a conversation with the juror Martin Crouse in relation to the charge against the defendant, to wit, the killing of George Johnson, in Prescott, in October, 1890. That in said conversation the said Crouse used the following language in substance, to wit: "That there are so many married men whose wives are loose characters, and single men will get around them, and get the best of them, and their husbands will make gun-plays," and that he did not believe in it; and from what he had heard and read about the case he was satisfied that John Chartz was guilty of having done said killing. The defendant also made affidavit that the facts stated by Bennett were unknown to him, and were not communicated to him by said Bennett, or...