Ullman v. State

• Decision Date: 05 April 1905
• Citation: 124 Wis. 602,103 N.W. 6
• Parties: ULLMAN v. STATE.
• Court: Wisconsin Supreme Court

124 Wis. 602

103 N.W. 6

ULLMAN

v.STATE.

Supreme Court of Wisconsin.

April 5, 1905.

Syllabus by the Judge.

1. By the rules of the common law a challenge to the array is required to be made in writing stating specifically the grounds thereof.

2. The Code is a complete system for criminal as well as civil actions. While it provides no challenge to the array it does not invade the inherent power of the courts, which, by the settled practice, accords to either party to an action triable by a jury an opportunity to object to the entire panel of jurors upon any ground deemed by him to affect the validity thereof.

3. An objection of the sort before mentioned may be by a formal challenge, or by a mere objection, or by a motion to quash the return, or to dismiss the jury, mere form not being material, and it may properly be, as it commonly is, denominated a challenge to the array.

4. In whatever form the challenge to the array, so called, is made the specific grounds relied on should be definitely stated, though not necessarily in writing, it being sufficient if it is made at the bar of the court and taken down by the reporter.

5. How specific the grounds of a challenge to the array should be made in order to entitle the moving party to a hearing is within the discretion of the court, such discretion, however, not being broad enough to permit the grounds to be stated so generally or obscurely as not to reasonably inform the adverse party of the precise nature thereof.

6. A proper objection to the entire panel of jurors should be summarily determined by the court, evidence being taken where necessary to the decision of disputed questions of fact.

7. In order to entitle a person deeming himself aggrieved by a ruling on a challenge to the array to a review thereof on an appeal, exception must be duly taken thereto and the specific objections and proceedings thereon and such exception be embodied in a bill of exceptions.

8. The law requiring the jury commissioners to furnish the clerk of the circuit court a list of names of persons qualified to serve as jurors to be drawn from the body of the county is satisfied if each commissioner proposes a partial list and all are adopted by the commissioners as the one list required by the statute and are delivered to the clerk of the circuit court accordingly.

9. Failure of the commissioners to authenticate the list of names furnished to the clerk as above stated, or of the clerk of the circuit court to make a list of such names and deliver the same to at least one of the commissioners, or failure of such clerk or his deputy to personally write the names upon separate slips of paper, fold and deposit the same in the box ready for drawing, such acts being performed by an employé of the clerk under his direction and his immediate presence, are harmless irregularities, in the absence of proof by a party deeming himself aggrieved that he is actually prejudiced thereby.

10. As a rule irregularities in executing a statutory method for selecting jurors are deemed immaterial, unless it appears probable that the person desiring to take advantage thereof may probably be prejudiced thereby.

11. The rule that an unsuccessful challenge to a juror is waived by failure to object to the panel collected for the trial, does not apply to a challenge to the array.

12. As to whether the purpose of a person who has shot another was to take that other's life, proof that had the bullet spent its force in the direction it was discharged the result would probably have been such other's death,--is competent.

13. Proof that a person assaulted another with a deadly weapon in such a way that had the effect of the assault not been turned aside by some means not reasonably to have been expected by such person, the natural and probable result would have been the death of such other, is sufficient to warrant a finding that the intention of such person in making such assault was to take such other's life.

14. Exceptions to instructions not preserved in a bill of exceptions cannot be reviewed upon appeal.

Error to Circuit Court, Dodge County; James J. Dick, Judge.

Albert Ullman was convicted of assault with intent to kill, and brings error. Affirmed.

See 100 N. W. 818.

Plaintiff in error was duly informed against as having on the 3d day of August, 1902, at Dodge county, Wis., made an assault on Ida Ullman with a loaded revolver with intent her, the said Ida Ullman, to kill and murder. In due time and form he entered a plea of not guilty, and was tried in October, 1903, in the circuit court for Dodge county.

The evidence indicated that about 7 o'clock a. m. on the day mentioned in the information the girl started from the place where she had been at work to go to her father's home, a considerable distance therefrom; that while on the journey she met her father; that about 8 o'clock a. m., while in his company on an unfrequented road in a rather secluded locality he shot her with a revolver in a vital part of her body; that he then fled from the scene, leaving her in an apparently dangerous condition; that she was found about seven hours thereafter some five feet from where she stood when shot, so weak from loss of blood as to be helpless, and from the time of the occurrence to the time of the trial the conduct of the accused was consistent with the theory that he shot the girl intending to kill her. The jury rendered a verdict of guilty as charged. A motion to set aside the verdict and grant a new trial was seasonably and properly made to preserve for review such questions as depended thereon. The motion was overruled and judgment was rendered upon the verdict in due form of law.

J. E. Malone, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., for the State.

MARSHALL, J. (after stating the facts).

Before impaneling the jury for the trial was commenced, counsel for the accused said he desired to “file a challenge to the array of jurors,” accompanying such statement by presenting a paper in that regard, which was placed on file. Such paper was not incorporated into the bill of exceptions, neither does the bill show in any formal way the grounds of the challenge. The proceedings had in respect to the matter show pretty clearly what such grounds were. The point is made by the Attorney General that such a challenge must be made in writing, stating specifically the grounds thereof, and that the writing must be embodied in the bill of exceptions in order to enable this court to review the decision of the trial court in respect thereto. If that be correct, whether the decision overruling the challenge to the array was proper or not, is not before us.

At common law a challenge to the array was required to be made in writing, stating specifically the grounds relied on. An issue of law or fact was then formed in respect thereto, which was tried by the court, if one of law, and by triers appointed by the court, if of fact. Under our statutory system for selecting and returning jurors there is no challenge to the array in the strict common-law sense. The Code was designed to be as complete for the trial of criminal as for the trial of civil cases. It makes no provision for a challenge to the array, or for any equivalent proceeding. One is liable to fall into confusion in respect to the matter by failing to note the fact that most of the decisions in this country in code states, where it is said that a challenge to the array must be in writing, are based on statutory requirements. In Iowa, where there is an express provision for a challenge to the entire panel, it is said that the common-law challenge to the array does not exist. State v. Davis, 41 Iowa, 311. It is said in cases decided in New York, California, Texas, Michigan, Minnesota, Mississippi and other states that might be mentioned, that a challenge to the array must be in writing, but it will be found on investigation that such decisions merely follow statutory requirements. The ancient method of trying issues of fact raised on such challenge is obsolete. All issues, whether of law or fact, on an objection to the entire panel of jurors are now triable summarily by the court, whether the making of the challenge is regulated by statute or is a mere matter of practice regulated by the court. Trial courts have inherent authority, and it is their duty, to permit and give consideration to objections seasonably and properly made to the entire panel of jurors, based upon grounds specifically stated, which, if true, indicate that the statutory method of selecting jurors was prejudicially departed from. The motion or objection may properly be, as it commonly has been in this state under the Code, called a challenge to the array. State v. Cameron, 2 Pin. 490;Conkey v. Northern Bank, 6...