Territory v. Kennedy

• Decision Date: 31 August 1880
• Parties: TERRITORY, respondent, v. KENNEDY, appellant.
• Court: Montana Supreme Court

3 Mont. 520

TERRITORY, respondent,

v.KENNEDY, appellant.

Supreme Court of the Territory of Montana.

August Term, 1880.

Appeal from Second District, Deer Lodge County.

THIS cause was tried by GALBRAITH, J.

H. KNOWLES and J. C. ROBINSON, for appellant.

A. E. MAYHEW, district attorney, second district, for respondent.

CONGER, J.

This is an indictment for murder, upon the trial of which the defendant was found guilty of murder in the second degree, and sentenced by the court to seventeen years in the penitentiary.

Appellant's counsel took various exceptions to the ruling of the court, and to the instructions by him given on the trial.

They also filed at the close of the trial affidavits of the incompetency of one of the jurors impaneled. And on these grounds moved the court for a new trial, which motion was by the court overruled. From the judgment of the court below an appeal was taken to this court.

The following appears of record in the transcript before us:

“And for further ground of new trial, said defendant sets forth that he did not have, and was not tried by a competent jury as required by law, in this: that one Henry Douglas, one of the jurors impaneled in said cause, testified on his examination as to his qualification as a juror; that he had never formed or expressed an opinion as to the guilt or innocence of said defendant, and was thereby accepted by defendant as a juror; but that said Douglas, after the homicide had been committed, and prior to the said trial, and upon hearing the facts and circumstances attending the same, expressed and in unqualified terms, his opinion as to defendant's guilt, to the effect, that he, said juror, believed defendant to be guilty of murder and ought to be hanged, and which said facts will appear by the affidavits of Patrick McAndrew and James Pierce, and hereto attached; and by the affidavits of the counsel for defendant, as to what said juror testified to at said trial.

Hiram Knowles and J. C. Robinson, being duly sworn, say on oath, each for himself, that he is attorney for said defendant and was present in said court when the jury was impaneled in said cause, and attended thereto on behalf of said defendant.

That one of said jurors who was so impaneled and who composed a part of said jury was one Henry Douglas, who after having been sworn on his voir dire, testified: that he had not prior thereto formed or expressed any opinion as to the guilt or innocence of said defendant, whereupon he was by defendant accepted as a juror by defendant.

James Pierce, being duly sworn, says on oath that he is of lawful age, and resides on the Little Blackfoot river in Deer Lodge county, Montana Territory, and about ten miles from the town of Deer Lodge; that he is well acquainted with one of the jurors impaneled and sworn, and who was one of the jurors in the above-entitled cause, and before whom said defendant Kennedy was tried upon an indictment for the killing of one Thomas H. O'Connor; that about the 9th day of May, 1879, said Henry Douglas and affiant had a conversation, in which said Douglas represented to affiant that he, Douglas, had then recently had a conversation with said O'Connor, said deceased, in relation to his, said O'Connor's, business affairs, and that he, said Douglas, represented to affiant that O'Connor had said to him, affiant Douglas, that if his, O'Connor's, creditors would let him alone, he would pay all up, and that said Douglas said he felt very sorry for said O'Connor.

That about the 22d day of June, 1879, he, affiant, had another conversation with said Douglas, and which was the next day after said O'Connor was shot by said Kennedy, and said conversation was upon affiant, and said Douglas having heard of the said shooting of said O'Connor by said Kennedy, and that the facts attending said shooting were spoken of and talked of by said Douglas and said affiant; and that in said conversation said Douglas expressed sympathy for said O'Connor and a strong prejudice against said Kennedy, and spoke in very strong and vehement terms against said Kennedy, and to the effect that he, said Douglas, believed said Kennedy to be guilty in killing said O'Connor.

And that about said time he, said affiant, heard a conversation of a very animated and loud and excited nature between said Douglas and one Patrick McAndrew, in relation to said matter of homicide, and that in said conversation, he, affiant, did not take particular note of what was said; but that he could hear and understand enough thereof to know that said Douglas spoke in very strong and bitter terms against said Kennedy, and seemed very much prejudiced against him, said Kennedy.”

Patrick McAndrew, being duly sworn, upon oath says: “That he is of lawful age, and that he is and ever since the 1st of June, 1879, has been acquainted with one Henry Douglas, being the same Henry Douglas who sat upon and constituted one of the jurors in the above-entitled cause at the April term of said court, 1880, in the trial of said Kennedy on an indictment for the killing of Thomas H. O'Connor, deceased. That about the 22d day of June, 1879, affiant had a conversation with said Henry Douglas as to the homicide, and which said conversation was at the premises of one James Pierce on the “Little Blackfoot river,” about ten miles from the town of Deer Lodge, and that said James Pierce was present during a part of said conversation and in the vicinity of affiant and said Douglas during the remainder thereof; and that in said conversation, he, affiant, and said Douglas talked at considerable length as to said homicide, and discussed the affairs between said O'Connor and said Kennedy, and said Douglas, in said conversation, was very much animated and excited, and expressed a very strong bias and prejudice against said Kennedy, and as to the entire of what he, said Douglas, then said, affiant cannot remember; but in no part thereof did said Douglas express any feelings than of hostility to said Kennedy, and sympathy for O'Connor's end, said without qualification, among other things, that he would hang him, said Kennedy, or any other man who would do what Kennedy did in shooting said O'Connor.

Be it remembered that on the 22d day of May, 1880, prior to making any ruling or decision on the motion of defendant for a new trial, the court called the juror, Henry Douglas the same juror named in the statement of defendant for motion for new trial, and affidavits of Patrick McAndrew and James Pierce, and proceeded to swear said Douglas to answer such questions as might be propounded to him touching his qualification as a juror in said cause and as touching the matter on hearing. That said Douglas proceeded to testify and answer such questions as were asked by the court, and which said questions and answers were as follows:

Question by the court: State your name. A. Henry Douglas.

Q. Are you the same Douglas who was a juror in the case of “ Territory v. Kennedy” at this April term? A. Yes.

Q. Do you remember of having any conversation with Pierce and McAndrew as stated in the affidavit of McAndrew? A. I did; at the time I went into the jury box I had forgotten all about this; I had no opinion or prejudice one way or the other at the time of my examination on my voir dire, and during my service as juror in said cause. After the trial was over, McAndrew came into the stable and spoke to me about it. That was...