Thiede v. People of Territory of Utah

• Decision Date: 11 November 1895
• Docket Number: No. 633,633
• Citation: 16 S.Ct. 62,40 L.Ed. 237,159 U.S. 510
• Parties: THIEDE v. PEOPLE OF TERRITORY OF UTAH
• Court: U.S. Supreme Court

159 U.S. 510

16 S.Ct. 62

40 L.Ed. 237

THIEDE

v PEOPLE OF TERRITORY OF UTAH.

No. 633.

November 11, 1895.

Asst. Atty. Gen. Dickinson, for the People.

Mr. Justice BREWER delivered the opinion of the court.

On November 5, 1894, in the district court of Salt Lake county, Utah territory, Charles Thiede, the plaintiff in error, was found guilty of the crime of murder, and sentenced to be hanged. On March 16, 1895, this judgment was affirmed by the supreme court of the territory, whereupon he sued out this writ of error.

The record of the proceedings in the trial court is voluminous consisting of over 400 printed pages, and we have not been assisted in our examination by either brief or argument on the part of counsel for plaintiff in error. We have, however, carefully examined the record, with the several assignments of error, and now state our conclusions thereon.

The first alleged error is in overruling the defendant's objection to going to trial on October 10, 1894, on the ground that the evidence taken at the preliminary hearing had not been transcribed, certified, and filed with the clerk of the district court, as provided by law. The homicide was charged to have been committed on April 30, 1894. The indictment was returned on September 24th. On September 28th the defendant was arraigned, and pleaded 'Not guilty.' On October 2d the trial was fixed by order of the court for October 10th, and on that day, when the case was called for trial, the objection heretofore referred to was made and overruled. It was admitted that a preliminary examination had been had; that the testimony before the justice of the peace had been taken down in shorthand by one Fred. McGurrin under direction of the justice; that about 10 days before the trial said McGurrin was asked by the prosecuting attorney to transcribe the same, and that he declined to do so. McGurrin stated in open court that he had in a prior case transcribed the evidence, and been refused payment therefore both by the county and the territory, and upon such refusal had brought suit against both, and in such suits it had been adjudged that he had no cause of action against either, and that the only reason he failed to transcribe the testimony was that he would not be paid for the same.

By section 4883, Comp. Laws Utah 1888, in cases of homicide the testimony taken upon the preliminary examination is required to be reduced to writing as a deposition by the magistrate, or under his disrection. If taken down in shorthand it must be transcribed into longhand by the reporter within 10 days after the close of the examination, and by him certified and filed with the clerk of the district court. The fees for this are to be paid out of the county treasury. The defendant did not ask for a continuance, but simply objected to going to trial because this transcript of the testimony had not been transcribed, certified, and filed. As the time within which this was by the statute required to be done had already passed, the objection, if sustained, would either have been fatal to the entire proceeding, and prevented any trial under that indictment, or at least would have caused a delay of the trial until such time as, by suitable proceedings, the filing of the transcript of the testimony could have been completed, and many things might interfere to postpone or prevent the obtaining of such transcript.

Before a ruling is made which necessarily works out such a result, it should appear either that the statute gives an absolute right to the defendant to insist upon this preliminary filing, or else that the want of it would cause material injury to his defense. Neither can be affirmed. A preliminary examination is not indispensable to the finding of an indictment or a trial thereon; and, if the examination itself is not indispensable, it would seem to follow that no step taken in the course or as a part of it can be. Further, the statute does not provide that this transcript shall be filed at any time before the finding of the indictment or before the trial, but only within 10 days after the examination. There is no prohibition against finding an indictment or bringing on of the trial at any time after the commission of the offense. The statute nowhere expressly places the filing of this transcript as something necessarily happening intermediate the examination and the trial, nor does it make the latter depend upon such filing, or even upon a preliminary examination.

Further, supposing the transcript is filed, of what avail is it to the defendant? Simply this: That, as such a transcript is by the statute made prima facie a correct statement of the testimony and proceedings at the preliminary examination, if the defendant wishes to impeach any witness by proof of contradictory testimony at such examination, it is convenient to have on file that which is prima facie such testimony. But, if the defendant can secure the same evidence without the transcript, the lack of it is no material injury; and that he could do so in this case appears from the fact that the stenographer was present in the court room, and his attendance could have been secured by a subpoena, and he compellee under oath to develop from his notes any testimony taken on the preliminary examination. We conclude, therefore, that the law does not forbid a trial before the filing of this transcript, nor was, in this case, the failure so to file an error working substantial injury to the rights of the defendant.

The second matter presented is that the court permitted certain witnesses to testify in the case, over the objection of the defendant, when their names were not indorsed on the indictment, nor included in a list furnished the defendant by the prosecuting attorney, and defendant had no knowledge that they would be called to testify until the trial had begun.

It appears that on October 2d, when the case was set for trial, the defendant's counsel, in open court, requested the district attorney to furnish them before the trial began with the names of all witnesses to be called by the prosecution on the trial; stating that they did not claim it as a matter of right, but of favor, and thought it was only fair to the defendant that he should be so advised. Thereupon the district attorney stated that he was unaware of any witnesses other than those whose names were on the back of the indictment, excepting four whom he then named, but promised that if he ascertained there were any others he would give information in regard to them as soon as received. On the 8th of October he furnished the defendant with a list of other witnesses. On the 11th, the day after the trial commenced, he notified the defendant of still another witness, who was in fact not called until the 15th, and four days before the defense rested.

By section 1033, Rev. St. U. S., the defendant in a capital case is entitled to have delivered to him at least two entire days before the trial a copy of the indictment, and a list of the witnesses to be produced on the trial. Logan v. U. S., 144 U. S. 263, 304, 12 Sup. Ct. 617. But this section applies to the circuit and district courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that territory. This question was fully considered in Hornbuckle v. Toombs, 18 Wall. 648, and it was held, overruling prior decisions, that the pleadings and prccedure of the territorial courts, as well as their respective jurisdictions, were intended by congress to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves. See, also, Clinton v. Englebrecht, 13 Wall. 434, in which it was held that the selection of jurors in territorial courts was to be made in conformity to the territorial statutes; Good v. Martin, 95 U. S. 90, in which a like ruling was made as to the competency of witnesses; Reynolds v. U. S., 98 U. S. 145, where the same rule was applied to the impaneling of grand jurors and the number of jurors; also, miles v. U. S., 103 U. S. 304, a case coming from the territory of Utah, in which the same doctrine was announced with regard to the mode of challenging petit jurors. Page v. Burnstine, 102 U. S. 664-668.

Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, Comp. Laws Utah, requires that the names of witnesses examined before the grand jury be indorsed on the indictment before it is presented. There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that, as a favor, the names be furnished them, indicates their understanding of the extent of defendant's right, and, so far as appears, the district attorney fully complied with this request, and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness, or the testimony that he gave. This allegation of error, therefore, is without foundation.

The third assignment is that the court erred in overruling defendant's challenges for cause directed against four jurors on the ground that on the voir dire they showed themselves incompetent to serve. These jurors testified substantially that at the time of the homicide they had read accounts thereof in the newspaper, and that some impression had been formed in their minds from such reading, but each stated that he could lay aside any such impression, and could try the case fairly and impartially upon the evidence presented. Section 5024, Comp. Laws Utah, reads that 'no person shall be disqualified as a...