Territory v. Hart

• Decision Date: 24 January 1888
• Parties: TERRITORY v. HART.
• Court: Montana Supreme Court

7 Mont. 489

TERRITORY

v.HART.

Supreme Court of the Territory of Montana.

January 24, 1888.

Appeal from district court, Lewis and Clarke county.

For opinion in this case on former appeal, see 14 Pac. Rep. 769.

Campbell & Duffy and J. E. Carne, for appellant.

W. E. Cullen, Atty. Gen., for the Territory.

McLEARY, J.

The appellant in this case stands charged with the crime of murder in the first degree for the killing of John W. Pitts, which occurred at the town of Boulder, in Jefferson county, Mont., on the 7th day of November, 1885. Indictment was found on the 4th day of May, 1886, by a grand jury of said county. The case came on for trial at the October term, 1886, of the district court of Jefferson county, which resulted in a mistrial, the jury failing to agree. The case was afterwards tried by the said court on the 7th day of May, 1887, and the defendant was convicted, and sentenced to death. From this conviction he appealed to this court at the July term, 1887, when the case was reversed and remanded, for errors occurring on the trial in the court below. Territory v. Hart, 7 Mont. -, 14 Pac. Rep. 769. On the filing of the remittitur at the ensuing term of the court in Jefferson county, a change of venue was ordered to the county of Lewis and Clarke, where the case was tried again on the 22d of November, 1887, and the defendant was again convicted, and sentenced to the death penalty, from which conviction he now prosecutes this appeal. Several errors alleged to have been committed by the court below are relied upon for the reversal of this judgment, and they will be noticed in their order as presented in the brief.

1. The first ground of alleged error is that the court had no authority to compel the defendant to examine the members of the grand jury who found the indictments against him, as to whether or not 12 of their number had concurred in finding such indictment. No such action on the part of the court is apparent from the record. No compulsion was used towards the defendant in the matter of the examination of the grand jurors. This court having held on the former appeal that the indorsement on the indictment was only prima facie evidence that the requisite number of grand jurors had concurred in finding the bill; and the appellant having on the former trial, by the motion properly made, called into question the prima facie case made by the indorsement on the indictment, 14 of the 16 persons who composed the grand jury were brought into court, and the defendant was offered an opportunity of taking their testimony upon the matter put in issue by this motion. He declined to interrogate them, and thereupon, under direction of the court, they were examined by the prosecuting attorney, and each and every one answered that 12 of their number had concurred in the finding of the indictment. This court, on the former appeal, in regard to this question uses the following language: “We are, then, after careful consideration and mature deliberation, of the opinion that the bringing into court of the indictment properly indorsed, and the filing of the same by the clerk in the presence of the grand jury, are only prima facie evidence of the concurrence of twelve or more of the grand jurors in the indictment, and that the accused has the right, before pleading thereto, on a motion to vacate the same properly made as in this case, to require the individual grand jurors to be interrogated under oath as to whether or not twelve or more of their number concurred in finding the indictment.” Territory v. Hart, 14 Pac. Rep. 771. The defendant's counsel seems to misapprehend this language of the court, and to construe it to mean that the grand jury as a body must be brought into court in their official capacity, and before they are discharged to be interrogated by the defendant as to the matter under consideration. Such is not the meaning of the language used. The defendant has the right to require the individual grand jurors to be examined as witnesses to testify to the fact as to whether or not 12 of their number concurred in finding the indictment, and he cannot complain that the court by its authority caused them to be brought forward for his benefit. These persons were not in court as a grand jury, nor as grand jurors, but as individuals in the capacity of witnesses, by one or more of whom the defendant was at liberty to prove that 12 members of the grand jury had not concurred in finding the indictment against him. He had the right to interrogate them, but declined to do so, and he cannot complain of the action of the court in this respect. Neither can he complain that the entire number of persons composing the grand jury were not present. The matter put in issue by his motion was a question of fact which might have been proved by any one or more of the persons who composed the grand jury, and, until such evidence should have been rebutted, it would have been as effective in regard to this matter as the cumulative evidence of the whole 16 persons. The fact that one of the grand jurors was dead, and another had left the territory, was ample excuse, if any were necessary, why the whole 16 persons were not examined. There is no error of the court upon this point, and it clearly appearing, by the evidence introduced by the prosecution, that 12 of the grand jury had concurred in finding the indictment, the defendant's motion in regard thereto falls to the ground, and requires no further consideration.

2. The position taken that the defendant was put in jeopardy for the second time by this trial in the court below is abandoned by his counsel on the argument in this court. It could not have been maintained if it had been insisted on, and needs no further consideration.

3. The next error assigned in the brief is the alleged alienage of the trial jurors Horsky and Steinbrenner. The record shows that Horsky arrived in this country during his childhood, and his father was duly naturalized before this juror attained his majority. It also appears, from the transcript, that Steinbrenner was a naturalized citizen at the time he was impaneled on the trial jury. During the progress of the trial (it does not appear at what particular stage) counsel for defendant called the attention of the court to the fact that there were one or more persons on the jury who were not citizens of the United States. On examination it appeared that the juror Horsky had come to America with his father when he was about two years old, and had been in this country 32 years, and had never taken out his naturalization papers. Thereupon, being afforded an opportunity by the court, he was naturalized in the proper form, and the trial proceeded. It, then, appears that at the time the jury retired to consider their verdict, and at the time the verdict was rendered, all the members of the jury were citizens of the United States, and the objection of alienage does not apply. But, even if there had been aliens upon the jury, the record does not show that the objection was made by the defendant at the proper time. Upon the former appeal in this case the court used the following language: “The juror Doniothy, who was challenged on account of alienage, was permitted by the defendant to sit in this case through a failure to exercise his right of peremptory challenge, the accused having two peremptory challenges unexhausted when he accepted the jury. He thereby waived the objection of aligned, if it were otherwise a good objection, and there was no error of which he could properly complain. It has been repeatedly decided that alienage is a disqualification of a juror which the defendant may waive, either expressly, or by failure to object at the proper time.” Territory v. Hart, 14 Pac. Rep. 774. This position was held by the court after through investigation and long consideration of the authorities. Territory v. Harding, 6 Mont. 326, 12 Pac. Rep. 750;Lum v. State, 11 Tex. App. 483;Presbury v. Com., 9 Dana, 203;State v. Elliott, 45 Iowa, 487;Benton v. State, 30 Ark. 340-344;Erwin v. State, 29 Ohio St. 190;People v. McGungill, 41 Cal. 430.

4. The next three objections urged by counsel in his brief relate to the admission of certain testimony which was claimed to be incompetent, but they were abandoned in the argument, and require no further notice.

5. The seventh assignment of error made by appellant is that the opinions of certain witnesses who were not medical experts were permitted to be given in evidence to the jury upon the trial of this case. It appears, from the transcript, that non-professional witnesses were examined on the depart of the defendant, and after stating their acquaintance with him, and certain actions of his, and other facts upon which their opinions were founded, were permitted to give their opinions as to his sanity. After that, other non-professional witnesses were called in rebuttal by the prosecution, and examined as to their acquaintance with the defendant, and testified as to his different acts, habits, and manners as the same had fallen under their observation, and were there upon questioned as to their opinions in regard to his sanity, to the giving of which opinions in evidence the defendant, by his counsel, objected. We will disregard the fact that the evidence objected to was given in rebuttal, and treat it in the same manner as if it had been offered in proving the case on the part of the prosecution before the defendant was permitted to introduce his evidence. The question, then, presented by the record is whether or not non-professional witnesses who are acquainted with the defendant, and have observed his actions and manner of life, may give in evidence their opinions as to his sanity or insanity on a trial for murder. It is certainly one of the fundamental rules of evidence that witnesses are required to testify as to facts, and not allowed to give their individual opinions to the jury. And this rule must always...