Territory v. Hart

• Decision Date: 20 July 1887
• Parties: TERRITORY v. HART.
• Court: Montana Supreme Court

7 Mont. 42

TERRITORY

v.HART.

Supreme Court of the Territory of Montana.

July 20, 1887.

Appeal from district court, First district, Jefferson county.

Campbell & Duffy, for appellants.

Wm. H. Hunt and Jas. R. Joyce, for respondents.

MCLEARY, J.

This is a case of murder in the first degree, in which the defendant appeals from the sentence of death. He relies upon four alleged errors for a reversal of this judgment, which may be stated as follows: (1) The court refused to permit the defendant to interrogate the grand jurors, at the time they were being impaneled, as to whether they, or either of them, had formed an unqualified opinion of the guilt of the defendant, in regard to the killing of Pitts, and as to whether they, or either of them, had any bias or prejudice against the defendant. (2) The court should have permitted the defendant to inquire of the individual members of the grand jury, on a motion made to vacate and set aside the indictment, whether or not 12 of their number had voted for the finding of the indictment. (3) The court should have sustained the challenge of the defendant to the trial juror Julius Doniothy, on account of his being an alien, who had only declared his intention of becoming a citizen of the United States, and had not been admitted to citizenship. (4) The court erroneously permitted the counsel for the prosecution, in the course of his argument, to read decisions of the English and American courts to the jury, on the question of insanity. (5) Exceptions were taken to the instructions of the court in regard to the definition of murder and the reasonable doubt, but these were withdrawn by counsel in his argument.

These several alleged errors will be considered in their order as presented in the briefs.

1. The statutes of Montana permit defendants, who are in jail, or under bond to answer indictments, to be present in court on the organization of the grand jury, and to interpose challenges to the panel, or to individual grand jurors, who may be objectionable. Rev. St. Mont. §§ 121, 122, div. 3. But the causes of challenge are distinctly specified in the statute. A challenge to the panel must be based on the ground “that the same was not drawn in accordance with the essential provisions of the law of this territory.” Rev. St. Mont. § 119, div. 3. A challenge to an individual grand juror may be interposed for any one of five causes, to-wit: “(1) That the juror is a minor; (2) that he is an alien; (3) that he is insane; (4) that he is the prosecutor on the charge against the defendant; (5) that he is a witness on the part of the prosecution, and has been served with process, or is bound by a recognizance as such.” Rev. St. Mont. § 120, div. 3.

The questions which defendant proposed to ask the individual grand jurors do not fall within the causes of challenge specified by statute, and were properly excluded. The statute is liberal, fair, and just; and its provisions cannotbe extended by the court. In the absence of the statute permitting him to do so, the prisoner would not be allowed to inspect the grand jury before whom his case would have to be examined, much less to interrogate them as to their qualifications to act as such. The defendant has the right, when the questions have not already been put, to ask the questions falling within the scope of the statute, but no others. These questions might be necessary, in order to enable the defendant to interpose a proper challenge, but a question put with any other purpose is improper.

The question as to rights of persons to challenge individual grand jurors, on the grounds of personal bias, has been variously decided in different states, according to their several statutes; and an eminent text-writer uses the following pertinent language in regard thereto: “But as our grand juries are generally drawn and impaneled to serve in all cases which may require this sort of investigation during a specified period of time, there are reasons why this sort of challenge should not be permitted, growing out of the inconvenience it would produce, and why, therefore, the objection should be restricted to the plea in abatement, or even be disallowed altogether.” 1 Bish. Crim. Proc. § 764, and note 5. This exposition of the law is virtually supported in the following well-considered cases: State v. Chairs, 9 Baxt. 197;Kemp v. State, 11 Tex. App. 198, 199;State v. Millain, 3 Nev. 423, 424;State v. Hughes, 1 Ala. 655.

In Massachusetts, in 1811, a grand jury was being impaneled, and Story, as amicus curiæ, stated that a certain person had been accused of the crime of murder, and that John Tucker was a neighbor of the accused, had originated the complaint against him, and had most probably formed a strong opinion of his guilt; and that it was therefore unsuitable that he should be sworn of the grand jury. The court, on consideration, said: “If objections of this nature were to be received, the cause of public justice would be greatly impeded. Those who live in the vicinity of persons accused are probably better knowing than others to the general character of the parties and of witnesses: and on this account are perhaps the more proper members of the grand jury, who will derive useful information from their knowledge. If, however, any individual juror should be sensible of such a bias upon his mind, that he could not give an impartial opinion, in any case under the discussion of the jury, such juror would feel it his duty, as it would be his right, to forbear giving an opinion, or perhaps to withdraw himself from the chamber while the discussion continued.” In re Tucker, 8 Mass. 286.

In the trial of Aaron Burr, the right of challenging grand jurors, on account of bias, was claimed and allowed by Chief Justice MARSHALL, without opposition; but the practice does not seem to have been generally followed, even in the federal courts.

In a late work on Juries, after a very exhaustive discussion of the whole subject, the learned authors say: “In view of the fact that the right of challenge, either to the array or to the poll, did not exist at common law on the part of the prosecution or the accused, it plainly follows that challenges can be taken only for causes specified in the statues, and by the persons therein named, and the statutes of some states expressly so provide.” Thomp. & M. Juries, § 519.

We have quoted thus largely from the authorities, in order to show that the practice adopted in Montana, though it may differ from that of Pennsylvania and some other states, accords with that generally prevailing throughout the Union, and is supported by the great majority of authority.

2. As to the second alleged error presented by the appellant, there is no territorial statute which explicitly gives the defendant the right to question the grand jury as to how many of their number concurred in finding the indictment. It is provided in the statutes that “no indictment can be found without the concurrence of at least 12 grand jurors;” and it is enacted in the same section that “when so found, and not otherwise, the foreman of the grand jury shall indorse it thus: ‘ A true bill. ___, Foreman.”’ Rev. St. Mont. § 150, div. 3. This indorsement is made, by the law itself, at least prima facie evidence that 12 or more of the grand jurors have concurred in finding the indictment. And it is further provided that, “where there is not a concurrence of twelve grand jurors in finding an indictment, the foreman shall certify, under his hand, that ‘no true bill was found,”’ (Rev. St. Mont. § 151, div. 3;) and, further, when indictments are found, the law requires that they should be brought into court by the grand jury, and in their presence presented to the court, and filed by the clerk in open court. Rev. St. Mont. § 152, div. 3.

It is certainly the plain requirement of the statute that at least 12 of the grand jury should concur in finding the indictment. A charge concurred in, and presented by a less number, is not a legal indictment, and no one should be held to answer for a felony thereupon. The statute law points out methods by which this concurrence shall be ascertained, but are these the only methods for ascertaining so important a fact? In some of the districts it is the practice for the trial judge to ask of the grand jury, when an indictment is presented, whether or not 12 or more of their number concurred in finding the same. In our view, this practice is proper and commendable. Unless the means pointed out by the statute are the only means by which the concurrence of the required number in the finding of the indictment can be ascertained, there certainly can be no objection to the prisoner interrogating the several grand jurors under oath as to this matter. It is not one of the things which they are sworn to keep secret. The fact is certified to by the foreman when he indorses the indictment “A true bill.” It is publicly, though tacitly, declared by each individual grand juror, when the indictment is filed in his presence, and the filing thereof read by the clerk in open court. But it is possible, in spite of all these precautions, that mistakes may occur; for, unless the accused is in jail, the style of the case indorsed on the indictment is not read, and where several indictments are prepared and submitted to the grand jury at the same time, out of a dozen, one which has been ignored might accidentally be indorsed by the foreman, and presented to the court as a true bill. Such mistakes and accidents should be corrected. 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 12 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,...