Territory v. Evans
| Decision Date | 24 February 1890 |
| Citation | 23 P. 232,2 Idaho 651 |
| Parties | TERRITORY v. EVANS |
| Court | Idaho Supreme Court |
JURORS - QUALIFICATIONS OF. - A juror must have all the qualifications now prescribed for an elector, and a member of the so-called Mormon church cannot be a juror.
SAME-CHALLENGE IN CRIMINAL CASES-EXCEPTIONS.-No exception is by statute allowed to an order overruling a challenge to a juror for general cause; hence, such order is not error.
DEPOSITIONS IN CRIMINAL CASES.-Depositions taken in the presence of the accused may be used on trial, when on account of death or other good cause, the presence of the witness cannot be had our statutes do not forbid such use, nor is it in violation of sixth amendment to the constitution of the United States.
(Syllabus by the court.)
APPEAL from District Court, Bear Lake County.
Affirmed.
Smith & Smith, for Appellant.
A person is not competent to act as a juror if he be not an elector of the county. (Rev. Stats., sec. 3941; Sampson v. Schaffer, 3 Cal. 107.) A memorandum or deposition taken before an examining magistrate is not competent evidence against the defendant upon trial. (State v Thomas, 64 N.C. 74; Jackson v. Commonwealth, 19 Gratt. 656; People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49; People v. Chung Ah Chue, 57 Cal. 567.)
Richard Z. Johnson, Attorney General, and Hawley & Reeves, for the Territory.
A decision upon the challenge for actual bias is not the subject of exception or review on appeal. (People v. Taing, 53 Cal. 602, 603; People v. Riley, 65 Cal. 107, 108, 3 P. 413; People v. Cotta, 49 Cal. 169.) Where a witness fails to appear at the trial of the cause, but has previously, either on a former trial or at the preliminary examination of the accused, given evidence in the cause, and the defendant has had an opportunity to cross-examine him, his deposition, or proof of the testimony given by him, can be admitted as evidence. (State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435; Summons v. State, 5 Ohio St. 325; Sneed v. State, 47 Ark. 180, 1 S.W. 70; People v. Riley, 75 Cal. 98, 16 P. 544; Brown v. Commonwealth, 73 Pa. St. 321, 13 Am. Rep. 740; Barnett v. People, 54 Ill. 325.) All omissions in the bill of exceptions are to be construed against the party presenting it. (People v. Williams, 45 Cal. 25; People v. Marks, 72 Cal. 47, 13 P. 149; People v. Huff, 72 Cal. 119, 13 P. 168.)
OPINION
The appellant was charged with the offense of resisting an officer. From the judgment rendered upon his conviction thereof he has appealed to this court, and now contends that the trial court erred (1) in admitting as a trial juror a person "who was a member of an organization that taught . . . . its adherents . . . . to commit the crime of bigamy or polygamy"; and (2) in admitting as evidence before the trial jury the depositions of witnesses taken before the committing magistrate.
Must a juror have all the qualifications of an elector? Whether a juror must have the same qualifications now required of an elector is the question involved in the first assignment of error. Sections 3941 and 3942 of the Revised Statutes together provide that jurors must be citizens of the United States and electors of the county. Sections 500 and 501 require that electors, besides having certain qualifications, must not be members of any "organization which teaches its adherents to commit the crime of bigamy or polygamy." While these statutes seem clearly to exclude as jurors all persons who belong to such "organization," it is contended such a construction will do violence to the legislative will and intention, for which the reasons following are assigned: 1. That when the law first provided a juror should be an elector (Laws, 8th Sess., p. 704), the only qualifications of an elector were citizenship and residence, and, in changing the qualification of electors (13th Sess., p. 106), by requiring they must not belong to said organization, it was not designed to apply this restriction to jurors also; 2. That, if jurors must have all the qualifications of electors, they must also be registered, which, under the operation of the registration law, would often result in the temporary exclusion of good citizens as jurors, who are otherwise qualified electors; and 3. That in some counties in this territory so many of the people are members of such organization that the courts would thus be practically without jurors.
1. The authorities holding that statutes will not be repealed by implication are not applicable to general laws which are in conflict with, and repugnant to, each other. When a general law is in apparent conflict with some prior private or special act, passed for the benefit of some particular interest or municipality, the presumption is indulged that it was not designed by the general to repeal the special law; but no such presumption is entertained in the case of conflicting general statutes. They cannot stand together. There can be no question that the two statutes prescribe different qualifications for electors, and the older must yield to the later. It may be added that the act of the thirteenth session was an election law, and by its last section it not only expressly repealed the former law on the same subject, but also "all acts or parts of acts in conflict with this act," which must be held to exclude any presumption that the legislature did not intend the repeal of all conflicting statutes. However, the fact that on the eleventh day of January, 1887, the legislature, by one act, swept out of existence all former legislation and laws of Idaho, and enacted a complete revision thereof, now embodied in our Revised Statutes, including sections 3941 and 3942, as they now are, is sufficient answer to all suggestions that the legislature did not intend the statutes as they now read. One of the prime objects of a revision is the elimination of doubt. What is included therein must be construed together as the law, and all that formerly existed, and not included, is clearly repealed. (Rev. Stats., sec. 19.)
2. It is not conceded an elector must be registered to act as a juror. Section 500 says he must be registered to vote. It does not follow that, if he has all the qualifications of an elector, he must be registered, to sit in the jury-box. Registration does not go to his qualification, but is only a precaution to prevent fraud in the election. But, even if the law should be construed that a juror must be registered, it would generally result in only a few being temporarily debarred the privilege of jurors.
3. It is, unfortunately, true that in some counties such a large proportion of the people belong to said "organization" that juries cannot be selected from the mass of the people, and courts may at times find it even inconvenient to procure them. So, also, communities might be found where the qualification of citizenship, or any other general qualification, might result in the same inconvenience. On the contrary, we think the legislature meant to exclude from jury service those belonging to the so-called "Mormon church." By section 501 they are distinctly enjoined from "holding any position or office of honor, trust or profit." Laws are construed in the light of the facts and circumstances under which enacted. We are justified in supposing the lawmaker took notice of the generally admitted fact that the members of that church are more obedient to its teachings, which are antagonistic to the laws of the land, than to the latter. View this question in any light, we are forced to the conclusion that under our laws a juror must have all the qualifications now required of an elector, and that the court should have excluded the juror objected to by appellant. That this conclusion will lead to inconvenience in some localities may be true, but we cannot change what seems to be a positive and clear statute. If there is any need of a change, we respectfully refer it to the legislative department.
Exception to Order Overruling Challenge for General Causes: Respondent insists, however, that, even if the juror was not qualified, the statute does not allow appellant an exception to the order of the court overruling his challenge to such juror. Inconsistent as it may appear, it seems such is the statute. Section 7831 divides causes of challenge to jurors into (1) general, including "a want of any of the qualifications prescribed by law to render a person a competent juror" (section 7832) and (2) particular which includes implied and actual bias (section 7833). The cause of challenge in this case was a general cause; and the statute in no place provides for or allows an exception to an order overruling such a cause of challenge. Our section 7940 (Cal. Pen. Code, sec. 1170), allows exceptions only in matters of challenge based on implied or actual bias. Here, then, we have a statute which declares a juror disqualified, but provides no remedy to the aggrieved party when the court admits him. On the principle that there is a remedy for all wrongs, we would be inclined to hold that such action of the court is reviewable. But our statute on this subject is an exact copy of that of California, and in adopting their laws we adopt also their...
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