Territory v. O'Hare

• Decision Date: 01 April 1890
• Docket Number: 6731
• Citation: 44 N.W. 1003,1 N.D. 30
• Court: North Dakota Supreme Court

44 N.W. 1003

1 N.D. 30

TERRITORY OF DAKOTA, Defendant in Error, v. MAURICE O'HARE, Plaintiff in Error

No. 6731

Supreme Court of North Dakota

April 1, 1890

ERROR to district court, Traill county; Hon. WILLIAM B. MCCONNELL Judge.

Judgment reversed, and a new trial granted.

Taylor Crum, for the plaintiff in error, argued: Twelve names must be drawn by the clerk, and defendant allowed to examine the twelve before exercising the right of peremptory challenge citing People v. Scoggins, 37 Cal. 676; People v. Iams, 57 Cal. 115; Lamb v. State, 36 Wis 424. A writing known to be in the handwriting of a party may be introduced for the purpose of comparison. Georgia, etc., Co. v. Gibson, 52 Georgia, 640; Chance v. Ry. Co., 32 Ind. 472; Macomber v. Scott, 10 Kan. 336; Page v. Homans, 14 Me. 478; Sweetser v. Lowell, 33 Me. 446; Vinton v. Peck, 14 Mich. 295; Yates v. Yates, 76 N.C. 143; Murphy v. Hagerman, Wright, 293, (Ohio); McCorkle v. Binns, 5 Binn. 340, (Pa.); State v. Hopkins, 50 Vt. 316; Bird v. Miller, 1 McMull. 120, (S. C.) The courts are divided on this proposition. Unless defendant puts his character in issue, the state cannot inquire into his history, nor attack his character. State v. LePage, 24 Am. Rep. 75; People v. Daniels, 11 P. 655; Coleman v. People, 55 N.Y. 89; Gale v. People, 26 Mich. 159; State v. Huff, 11 Nev. 26; State v. Lurch, 6 P. 410; State v. Porter, 75 Mo. 171; State v. Carson, 66 Me. 116; State v. Rainsburger, 31 N.W. 866; Philadelphia, etc., Ry. Co. v. Stimson, 14 Peters, 448.

As to the fifteenth exception to the charge, stated in the opinion, counsel cited: Thorp v. Goewey, 85 Ill. 612; Evans v. George, 80 Ill. 51; Frame v. Badger, 79 Ill. 441; Bulen v. Granger, 29 N.W. 719; Unruh v. State, 4 N.E. 453.

Geo. F. Goodwin, attorney general, and F. W. Ames, states attorney for Traill county for the defendant in error: The objection to want of box and ballots was waived because not made till jury was complete. People v. Stonecifer, 6 Cal. 405; Thrall v. Smiley, 9 id. 537; People v. Ransom, 7 Wend. 417; Com. v. Norfolk, 5 Mass. 435. Jurors in criminal cases should be separately accepted and sworn: Thompson on Trials, §§ 91-2; State v. Potter, 18 Conn. 166; State v. Pierce, 8 Iowa, 231; Com. v. Rogers, 7 Met. 500; Walker v. Collier, 37 Ill. 362; State v. Roderigas, 7 Nev. 328; Horbach v. State, 43 Texas, 242; Smith v. Brown, 8 Kan. 608; Schufflin v. State, 20 Ohio St. 233; State v. Brown, 12 Minn. 538. An erroneous overruling of challenge for cause is not reversible error unless defendant had exhausted his peremptory challenges. Anarchist Case, 12 N.E. 989; Loggins v. State, 12 Tex.App. 65; People v. McGungill, 41 Cal. 429; State v. Elliott, 45 Iowa 486; People v. Teatrusky, 2 N. Y. Crim. Rep. 450; Territory v. Campbell, 22 P. 121. That defendant was properly cross-examined as to his history and character: State v. Cox, 67 Mo. 392; Southworth v. Bennett, 58 N.Y. 659; State v. Pfefferle, 12 P. 406; Anarchists' Case, 12 N.E. 989; Boyle v. State, 5 id. 203; People v. Cummins, 11 N.W. 184; Territory v. Davis, 10 P. 359; Hanson v. Com., 11 S.W. 286; People v. Johnson, 50 Cal. 571. The extent of such cross-examination is in the discretion of the trial court: Disque v. State, 8 A. 281; People v. Clark, 8 N.E. 38; State v. Pfefferle, supra. Specimens of chirography are not admissible in evidence merely for purposes of comparison: Strother v. Lucas, 6 Peters 763; 9 Am. & Eng. Encyc. Law, 283-290. Unsigned letters are admissible, if traceable to the writer; Bartlett v. Mayo, 33 Me. 518. As to the fifteenth exception to the charge, they cited: Thompson on Charging Jury, § 37; People v. Cronin, 34 Cal. 191.

In opening the state's case, its attorney spoke as follows: "This is the third time that the grand jurors of this county have returned an indictment for the crime of murder. In the former cases, the victim, the accused, the witnesses, and all connected with the trial, were residents here, and well known to the people of the county; in this case, the defendant, and most of the witnesses, and the deceased, are strangers to us all. Yet this investigation is of as much moment, to the people of this county, as though this crime were directed against one of our own citizens." To these remarks the defendant's counsel excepted.

To the point that such remarks were improper, counsel for plaintiff in error cited: State v. Williams, 18 N.W. 682; Cleveland Paper Co. v. Bangs, 16 N.W. 833; Brown v. Swineford, 28 Am. Rep. 582; McDonald v. People, 18 N.E. 817; Hall v. Wolf, 16 N.W. 710; People v. Montague, 39 id. 588; Sasse v. State, 32 id. 849. Counsel for the state, contra, cited: Thompson on Trials, §§ 964, 977; Heyl v. State, 109 Ind. 589; People v. Gibbs, 38 N.W. 257; Boldt v. State, 35 id. 935; State v. Calhoun, 34 id. 194; State v. Winter, 34 id. 476; People v. Greenwall, 22 N.E. 180; Anarchists' Case, 12 id. 993.

OPINION

WALLIN, J.

The defendant (plaintiff in error) was convicted of the crime of murdering one Casey, and is now incarcerated at Bismarck under sentence of imprisonment for life. On April 24, 1889, motions for a new trial and in arrest of judgment were overruled by the district court. A bill of exceptions, embracing the evidence and the proceedings had at the trial, was settled in the court below; and the whole record is now before this court for review.

The errors assigned are numerous, and we will first consider those which relate to the formation of the trial jury. The mode of impaneling the jury was the following: Names were called by the clerk; and, as jurors appeared, one at a time they were sworn individually to try the case, and without calling twelve men into the jury-box. After the panel had been completed, it was sworn collectively, by administering the same form of oath as that which had previously been administered to the jurors individually. We find no warrant in the statute governing criminal trials for swearing the jury collectively, but no exception appears to have been taken to the second swearing of the jury, and we are unable to see how such an irregularity did or could prejudice the defendant. After the jury had been called and sworn individually as jurors, but before the oath had been administered to the panel as a body, objection was made by defendant's counsel "to the manner of selecting the jury." It appears that the trial court considered it very important that the specific ground of this objection should distinctly appear; and, accordingly, in settling the bill of exceptions, the trial court not only stated the ground of the objection, with the ruling thereon, and the exception allowed thereto, but superadded an explanation which serves the double purpose of showing affirmatively what the ground of the objection was, and also excluding negatively all other grounds. The following is the record: "When the jurors were called and sworn individually, there was no objection made or exception taken to the manner of impaneling them until after the jury was completed, and the jurors had been sworn, individually, to try the case, when the defendant excepted to the manner of selecting the jury. Afterwards the court ordered the jury to be sworn as a panel, in the same manner as though it was administered to them as individual jurors." To which record the court appended the following: "When the defendant excepted to the manner of selecting the jury, as stated and referred to in the foregoing remarks of the court, it was to the fact of the jurors being called and sworn singly by the court; and to this fact an exception was allowed, as indicated in the remarks of the court." Conceding, without deciding the point, that this objection had not been constructively waived by the fact that the defendant's counsel had remained silent, and allowed the process of impaneling the jury, one at a time, to go forward to completion without objection, we will consider the objection upon its merits. The subject of challenging jurors is wholly a matter of statutory regulation. In criminal cases, it is provided that "before a juror is called the defendant must be informed by the court, or under its direction, that, if he intends to challenge an individual juror, he must do so when the juror appears, and before he is sworn." Also, that "a challenge to an individual juror is either (1) peremptory; or (2) for cause." "It must be taken when the juror appears and before he is sworn." Code Crim. Proc. §§ 322-324. It is quite clear to us that these sections of the Code, with others of similar import in the context, which we need not cite, expressly require that all challenges to individual jurors, whether peremptory or for cause, must be taken when the individual juror appears, and before he is sworn as a juror. The language of the statute is identical with the provisions of a statute of the state of Minnesota, under which the supreme court of that state holds that "all challenges by either party to an individual juror, whether for cause or peremptory, should be interposed and determined when he is called, and in the prescribed order, before proceeding further in the call." State v. Armington, 25 Minn. 29; State v. Brown, 12 Minn. 538, (Gil. 448.) People v. Scoggins, 37 Cal. 676, is cited as authority for the proposition that twelve men must be called into a jury-box before a defendant in a criminal cause can be called upon to exercise his right of challenge. The case is instructive, and we can and do adopt much of its reasoning as applicable to our own criminal code; but the case is not in point as supporting the construction contended for by defendant's counsel. In California, there is a section of the statute relating to civil actions which expressly requires the clerk to "draw from the box twelve names," etc. § 159,...