Territory v. O'Hare

• Decision Date: 01 April 1890
• Citation: 1 N.D. 30,44 N.W. 1003
• Parties: Territory v. O'Hare.
• Court: North Dakota Supreme Court

1 N.D. 30

44 N.W. 1003

Territory

v.O'Hare.

Supreme Court of North Dakota.

April 1, 1890.

Syllabus by the Court.

1. In a criminal case, where the jury was called and sworn singly, and without calling 12 jurors into the box, and where the parties were required to exhaust all challenges to individual jurors as each juror appeared, and before proceeding further with the call, held not error.

2. Where the clerk of the district court, in calling names for a trial jury, did not obtain the names from any jury-box, and did not use either a jury-box or ballots in calling the jury, but called off the names of those who served as jurors from a list of names before him, held, it was error. Held, further, that, had the attention of the trial court been called to such irregularity before the trial began, it would have been its imperative duty to have promptly dismissed from the trial panel all jurors who were so drawn. But where, in a criminal case, such irregularities of the clerk were discovered by the defendant's counsel while they were going on, and before the trial began, but he made no objection based on such irregularities, but, on the contrary, kept silent as to the same until after a verdict was returned into court, held, that the irregularity was waived. Held, further, that such irregularity was of a character which might be waived without impairing defendant's right of trial by jury. Held, further, that it was too late to take advantage of such irregularity upon a motion for a new trial, where defendant's attorney had such previous knowledge of the irregularity, but reserved his knowledge thereof, and brings it before the court for the first time, and by affidavit, upon a motion for a new trial.

3. Where it is conceded that defendant's challenge of a juror for cause in a criminal case was improperly overruled, but it did not appear affirmatively from the record that, at the time the jury was completed and accepted, defendant had exhausted his peremptory challenges, held, that defendant was not in a position to take advantage of such erroneous ruling. In such case, the court will assume that the juror, if objectionable to defendant, could have been gotten rid of by a peremptory challenge.

4. Where letters purporting to have been written by the defendant were offered in evidence by defendant for the sole purpose of comparison of the handwriting with disputed writings put in evidence by the territory, and which letters were excluded, held not error. Writings not in evidence for other purposes cannot be compared with disputed writings, under the common-law rule adopted by the supreme court of the United States. The trial court, in making such ruling, was a territorial court of subordinate jurisdiction, and, as such, was bound by the federal precedents. Should the same question arise in a case commenced after this state was admitted into the Union, we shall feel at liberty to establish a more liberal rule, if we shall then deem it expedient so to do.

5. The testimony of an expert in handwriting was excluded by the trial court. The expert testified that he was acquainted with defendant's handwriting, but, being examined by the court, he testified that he had seen defendant write but once, and that was during the noon recess of the court, at which time he had, at the request of the defendant's counsel, seen defendant write, for the sole purpose of becoming a witness. Held not error.

6. Where, in a criminal case, defendant, at his own request, had taken the stand as a witness in his own behalf, and, on cross-examination, was required to testify as to his antecedents, and, in so doing, stated that he had passed under names other than his own, and had been in jail at different times and places, such testimony being objected to as irrelevant, and not proper cross-examination,-no question of privilege having been presented, held not error. A defendant, under such circumstances, occupies no better position than any other witness; hence, within the bounds of a sound judicial discretion, may be cross-examined as to specific collateral facts for the sole purpose of affecting his credibility. This is the rule as established by a decided preponderance of authority; but a different rule prevails in certain states, as in Oregon, California, and Missouri, where statutes have restricted the right of cross-examination to matters drawn out in chief.

7. Where the trial court, in a criminal case, in delivering its charge to the jury, makes an argumentative comparison upon the relative credibility of the principal witness for the defense, and the principal witness for the prosecution, where their testimony is vital, and diametrically in conflict, and in so doing disparages the credibility of such witness for the defense, and also conveys to the jury in plain, though indirect, terms, that the court entertains strong suspicions of the credibility of such witness for the defense, held error which must reverse the judgment. Held, further, that such error is not cured by repeated statements in the charge that the jury are the exclusive judges of the weight of evidence, and the credibility of witnesses.

8. Subdivision 6, § 343, Code Crim. Proc., which declares that, in charging the jury in criminal trials, the judge “may state the testimony, * * * but must not charge the jury in respect to matters of fact,” has, as to criminal trials, abrogatedthe common-law rule, under which judges were permitted to give juries their own views and opinions upon the weight of the evidence and the credibility of the witnesses.

Error to district court, Traill county; William B. McConnell, Judge.

Taylor Crum, for plaintiff in error. George F. Goodwin, Atty. Gen., and F. W. Ames, Dist. Atty., for the Territory.

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 12 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 referered 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...