State v. Hoyt

Loomis, J. In order to abbreviate as much as possible the discussion of the numerous questions which the record presents for review, we will consider them under the following four general heads:—1st. Those relating to the jury. 2d. To the rights and privileges of counsel. 8d. To the admissibility of evidence. 4th. To the validity of the sentence. First. The first question under the first head is, whether in showing the ground of challenge for cause, the oath on voir dire should have been administered to the jurors, though no request was made for that purpose by either party. We can find no ground for a new trial here. ■ As the defendant saw no occasion at the time to ask for it, it is too late now to complain. There is nothing which can more easily be waived than this matter of challenges to the favor. A party waives the whole matter simply by remaining silent. If while the panel is being made up he knows of a cause of challenge and does not take it, it is well settled that he cannot avail himself of the defect afterwards; and when he voluntarily inquires of a juror as to his bias and takes his statements without requiring the sanction of an oath, and goes to the court on the sufficiency of the facts so stated as a ground of challenge, he ought on every principle to be concluded by it. It is a case where all parties assume and virtually agree that the statement as made is true. The court assumes the same thing and passes on the sufficiency of the statement, so that the defendant is in no wise prejudiced, unless he could under the sanction of an oath prove other or different facts. If he thought so, he should have asked the court to administer the oath. But we do not even concede, except for purposes of argument, that the accused could have demanded th,e oath as matter of strict right. We do not think the common law practice has ever been adopted in this state, and our statutes are silent on this subject. By the strict common law mode the question goes before triers appointed for that purpose and the jurors cannot be inquired of whether they have expressed opinions adverse to the prisoner in order to found a challenge to the polls on that ground, but the facts must be proved by — 529 — extrinsic evidence. The King v. Edmonds, 4 Barn. & Ald., 476. The same rule still prevails in several of the United States. Robinson v. The State, 1 Kelly, 563; Jones v. The State, id., 610; Respublica v. Dennie, 4 Yeates, 267; State v. Baldwin, 1 Tread., 289; State v. Simms, 2 Bailey, 29. It is undoubtedly the more common method in this country to show the ground of challenge by the oath on voir dire, and such is we think a natural, convenient and reasonable mode. In this state the practice we believe has been unknown till within a very recent period, where on motion of the accused it has been permitted in a few capital trials. We think the matter may safely be left in the discretion of the court. It would doubtless be granted upon request in all cases of very grave importance. The next question is, whether the challenges for cause were properly overruled in the cases of jurors Brothwell, Northrop and Slosson. As to the first, the answer that he did not serve as juror at all, having been peremptorily challenged by the State, is sufficient. The accused could not possibly have been prejudiced by this ruling, as the number of jurors which he could challenge peremptorily remained the same. Even where the accused himself resorts to a peremptory challenge after challenge for cause is overruled, it has been held that he is not aggrieved where the impaneling of the jury was completed without exhausting the right of peremptory challenge. State v. McQuaige, 5 So. Car., 429; Morton v. The State, 1 Kan., 468; McGowan v. The State, 9 Yerger, 184; Ferriday v. Selsen, 4 How. (Miss.), 506; Carroll v. The State, 3 Humph., 315; Mims v. The State, 16 Ohio St., 221. And in several of these cases it was dictinctly held that the record must show affirmatively that the right of peremptory challenge was so exhausted, in order to make the objection available to the accused. In the case at bar it appears that both Northrop and Slosson were challenged by the accused and did not sit as jurors, and the record fails to show that the right of peremptory challenge had been exhausted. So that — 530 — the principle laid down in the above authorities will dispose of all the cases. But lest, as to the last two jurors, there may have been an omission in the record to state a fact that really existed in favor of the accused, we will consider briefly the merits of the question. It is found that Northrop had read in some paper some account of the homicide, and from such reading formed rather an indefinite opinion in reference to the matter and might have expressed the same, qualifying it by adding, if the report he had read was true; but further stated that he had formed no such opinion as would prevent his trying the case impartially. As the reading was limited to some account in a newspaper and the opinion formed from that was “ indefinite” and purely hypothetical, and if ever expressed was so qualified, and the juror was clear that he could try the case impartially, it is manifest that the court properly overruled the challenge. The case is not only clearly within and controlled by those of State v. Potter, 18 Conn., 166, and State v. Wilson, 38 Conn., 126, but is within the principle of a great preponderance of authorities in other jurisdictions. People v. Brown, 48 Cal., 253; Plummer v. The People, 74 Ill., 361; Thomas v. The People, 67 N. York, 218; Greenfield v. The People, 20 N. Y. Supreme Ct., 242, Heart v. The State, 57 Ind., 102; Gillooley v. The State, 58 Ind., 182, State v. Lartigue, 29 Louis. Ann., 642; Curley v. Commonwealth, 84 Penn. St., 151; State v. Tatro, 50 Verm., 483. The statement of the other juror, Slosson, was that, “from reading some account of the homicide m a newspaper, he had formed an opinion as to the guilt of the accused and might have stated what his opinion was, but that his mind was in such a condition that he could try the case impartially upon the evidence.” At first view this may not seem so clear as the case of Northrop, but when analyzed and more critically examined, the statement, with the natural and necessary inferences to be derived from it, will be found to have substantially the same — 531 — meaning. In both the reading was of the same character— simply “ some account in a newspaper,” and the opinion was formed entirely “from” such reading. Northrop, reasoning his own case, explained that his opinion was indefinite and hypothetical. But in Slosson’s case the inference would seem to be a necessary one that his opinion also was based on the supposition that the account read was true; and he adds explicitly “ that his condition of mind was such that he could try the case impartially upon the evidence,” obviously meaning the evidence to be given in court, excluding the newspaper account. In State v. Wilson, supra, the statements by the jurors Lonzo M. Smith and Samuel J. Mills, as to having formed and expressed an opinion, were at least as strong as, if not stronger than, in the present case. And the reasoning of Butler, C. J., in giving the opinion in that case, is fully applicable to the present case. Referring to opinions formed from newspaper accounts lie says:—“Opinions thus formed are not in their nature such as should disqualify a juror. If he is free from partiality or prejudice derived from any other source, his opinion is, as a matter of course, hypothetical— not fixed or settled in the sense in which those terms are used, when used correctly, in the law. All men take newspaper statements as current news, liable to qualification, explanation or contradiction, and when qualified, explained or contradicted they change their opinions or belief accordingly, as matter of course. It requires no stronger evidence to satisfy the mind of a juror having such an opinion, impression, supposition or belief, one way or the other, as the evidence may preponderate, than it would if he had never read the statement. His mind is certainly in no worse situation than the mind of a juror who has heard one side in court making a prima facie case, is to hear the defence when made upon the other side and give it its just weight.” The next question is whether the court erred in allowing the State to challenge peremptorily seven jurors. Ever since the year 1848, the accused, in trials for murder, has been allowed twenty peremptory challenges. But, prior — 532 — to the act of 1879, (Session Laws, 1879, p. 363,) the State was allowed only two. But the act of 1879, which was in force at the time of the trial, provided that “ upon the trial of any criminal prosecution the State may challenge peremptorily as many jurors as the accused is allowed by law to challenge peremptorily in such case.” The ruling of the court therefore was clearly authorized by the last-mentioned statute; and the only qiiestion is whether the act was constitutional and valid as applicable to this case. The offense is alleged to have been committed June 23d, 1878, prior to the passage of the act in question.. The claim in behalf of the accused is that the statute was ex post facto, and that therefore it could not be applied to this case. But the legal meaning of ex post facto is not its literal meaning. It has a technical signification. In the leading case of Calder v. Bull, 3 Dall., 390, four classes of statutes are mentioned as within the intent and meaning of the constitutional prohibition in question, namely: 1st, laws that make an act, which was innocent when done, criminal, and punish it as such; 2d, that aggravate the crime and make it greater than it was when committed; 3d, that inflict greater punishment than the law did when the crime was committed; 4th, that alter the legal rules of evidence so as.to require less or different testimony in order to convict the offender than was required when the crime was committed. The statute we are now considering has none of the elements of an ex post facto law, but relates exclusively to the mode of procedure, which is and must at all times be under the control of the legislature. Judge Cooley, in his Treatise on Constitutional Limitations (4th ed., p. 331), well says: “ So far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place.” The precise question under discussion has been repeatedly decided adversely to the defendant’s claim. In the following cases it is held that statutes giving the government additional challenges are valid, though passed — 533 — after the crime was committed: Stokes v. The People, 53 N. York, 164; Walston v. The Commonwealth, 16 B. Monr., 15 ; Commonwealth v. Dorsey, 103 Mass., 412; Jones v. The State, 1 Kelly, 610; Warren v. The Commonwealth, 37 Penn. St., 45; State v. Ryan, 13 Minn., 370; State v. Wilson, 48 N. Hamp., 398; and in Dowling v. The State, 5 Sm. & Marsh., 664, it was held that a statute reducing the number of the prisoner’s peremptory challenges was valid. The remaining question under the first head is, whether the accused, at his request, had the right to have the jury polled. Such a right, under the law and practice of this state, has never been recognized, and there are no considerations of justice, expediency, or security to the prisoner, that require its adoption instead of our present practice. Our practice is in effect but obtaining in a more convenient way the opinion of each individual juror. The established form of procedure, as given in 2 Swift’s Digest, p. 439, is as follows : When the jury announce that they have agreed on a verdict, they are distinctly asked, “ Who shall speak for you ? ” The reply is, “The foreman.” The foreman makes answer for the jury; the clerk is directed to record the verdict; the jury are again distinctly asked to hearken to their verdict, and it is again repeated, the clerk adding, “ So say you all.” Under such a practice there can be no propriety in having the jury polled. But it is claimed as a common-law right. It is, however, doubtful whether at common law it was considered an absolute right. Lord Hale states (2 Hale’s P. 0., 299,) that when the jury say they have agreed, “ the court may examine by poll,” which implies that it was within the discretion of the court. In the United States the decisions in different states are conflicting. ' In Ropps v. Barker, 4 Pick., 239, it was held to be not the right of the party to have the jury polled; that when the jury have openly, deliberately and unanimously assented to the verdict when called on for that purpose, it afforded all the evidence of unanimity which could reasonably be required. — 534 — This decision has since been followed and applied to capital trials in Commonwealth v. Roby, 12 Pick., 496, and Commonwealth v. Costley, 118 Mass., 1. A similar decision in a capital cause was also made in State v. Wise & Johnson, 7 Richardson, 420. We conclude this discussion by adopting the language of Mellen, C. J., in giving his opinion in Fellow’s ease, 5 Greenl., 383 : “ As to the exception ” (that the jury were not polled) “ it certainly cannot be sustained for a moment. The course of proceeding on the part of the court was according to uniform immemorial usage.5’ * * “ It is of no consequence whether the question proposed by the clerk to the jury, as to their affirmation of their verdict, be directed to them jointly or separately; in either case all are called on by way of inquiry, whether in open court they consent to the verdict, signed or announced ore temas by their foreman. If no one objects, all are considered by their silence as expressing their consent.” Second. We come now to consider certain rights and privileges claimed by counsel for the accused during the trial, and which were claimed to have been violated by the rulings of the court in limiting the time they desired for taking notes of testimony and for argument. The court, under a recent statute and at large expense to the state, employed stenographers to take the testimony in full, and directed that full copies of the testimony taken each day be delivered to the counsel for the accused on the morning of the day succeeding, which was complied with. Under this arrangement it is found that in two or three instances the court declined to stop a witness at the request of the counsel for the accused, to enable them to take full notes in their own way and time. This was a matter fully within the discretion of the court, and is not subject to review here; but the question in'a sense,, being here, we will avail ourselves of the opportunity to say that the ruling meets our most emphatic approval. And we will add that the exercise of a similar wise discretion in trials generally, whether civil or criminal, and whether with or — 535 — without stenographers, would greatly expedite the transaction of judicial business, without any detriment to the administration of justice. Another complaint is, that the court restricted the counsel to four hours for the argument. The statute (General Statutes, p. 61, sec. 9) providing that “ in no trial before the Superior Court * * shall counsel occupy more than one hour in argument, unless the court shall, on motion for special cause before the commencement of such argument, allow a longer time,” is broad enough in its language to include criminal as well as civil proceedings. And if it is to be so construed, it implies that the legislature considered that the constitutional right to be heard by counsel was subject to regulation and limitation. The present question, however, is not controlled by the construction of the statute, but rather by the meaning o£ the constitutional provision. The court did not restrict the argument to the hour mentioned in the statute, but extended it to four hours. There is no claim or suggestion that the time so allowed was insufficient for the purposes of a full, fair and complete defense. On the contrary the fact that the counsel did not occupy the time they had, but fell short twenty-five minutes, is satisfactory evidence that the accused was not aggrieved by the limitation. The sole question therefore is, whether the court had the right to limit the time at all. The counsel for the accused contend that the constitution, Art. 1, sect. 9, guarantees the right of an unlimited time for argument. The language is, that “ in all criminal prosecutions the accused shall have a right to be heard by himself and by counsel.” The right so guaranteed is of inestimable value, not alone to the accused, to prevent any perversion of law or fact affecting his life, liberty or property, but to the court and the cause of incorruptible justice as well. We would not therefore abridge by one jot or tittle so precious a privilege. But what is the fair meaning of the guarantee? Is the right to be heard by counsel to be understood as having no limitations — 536 — whatever ? Surely not as to the number of counsel who may speak; why then as to the time they may occupy ? The very purposes for which courts of justice were instituted would be or might be defeated if such privileges were subject to no restriction. The limitations of course must be reasonable, such as do not essentially impair the right or deny a full and complete defense. As the accused in the present case had the opportunity of being reasonably and fully heard by counsel, we conclude that the constitutional guarantee referred to was in no wise infringed. And this view is fully confirmed by the decisions generally of the courts of the other states under similar constitutional provisions. In Weaver v. The State, 24 Ohio St., 584, the action of the court below in limiting the time for argument on the trial of a person indicted for an assault with intent to kill was sustained. White, J., in giving the opinion of the court, said: “ The constitution of Ohio guarantees to the accused the right to ‘ appear and defend in person and with counsel.’ But this guaranty is not inconsistent with the existence of power in the court to regulate the exercise of the right by reasonable rules and limitations. Courts are established for the purpose of administering justice. To insure the accomplishment of this object and prevent abuse, it is essential that courts should exercise a superintending control over the argument of causes before them. The power it is true may be abused, and if it should be it would constitute ground for a new trial. The exercise of the power against a party charged with a grave criminal offense is certainly a matter of delicacy and should be governed by prudence and caution. Full time should be allowed for the fair discussion and presentation of the case.” In Lee v. The State, 51 Miss., 566, being a prosecution for theft, the time limited was thirty minutes, which was held no ground for a new trial. The court said:—“ The rule was not applied arbitrarily, tyranically, without just reason, in a, spirit of partiality and prejudice. It cannot be said that the ' accused was not heard by himself and counsel, or both. AI case might arise calling for the action of the _court. .. There — 537 — is nothing in the record upon which this court can assume that the plaintiff in error was injured or prejudiced by the restylction imposed upon his counsel.” The case of State v. Linney, 52 Missouri, 40, was an indictment for murder. Wagner, J., in giving the opinion Said:— “ The court limited the time of the accused in addressing the jury and it is argued that there was no right to place any restriction upon him. The question was formerly raised and decided by this court in favor of the ruling complained of, and we are not disposed to review the subject. Moreover it does not appear that the counsel in this case did not have sufficient time. The power to limit and restrict the time might be abused, and a case might be presented in which the court would feel itself called upon to interfere.” In State v. Collins & Blalock, 70 N. Car., 307, the right to limit the time was held to be in the sound discretion of the court. Subsequently to this decision however a statute was passed, which in express terms gave the counsel the right to address the court or jury “ for such a space of time as in his opinion might be necessary for the proper development and presentation of his case.” There are many instances also in which the courts have not approved of the restriction because under the particular circumstances it was unreasonable. In People v. Keenan, 13 Cal., 581, the defendant’s counsel in a trial for murder, where the testimony was all circumstantial and very voluminous, was restricted to one hour and .a half, and a new trial was granted on the ground that the time was not sufficient for a full and fair discussion. The court said:—“We do not question the right of a district judge to limit counsel to a reasonable time in their arguments to the jury, though from the danger to which this power is exposed it is perhaps better, if ever done at all in capital cases, that it should be done in very extraordinary and peculiar instances.” The same principle is recognized in the cases of Hunt v. The State, 49 Geo., 255, Word v. The Commonwealth, 3 Leigh, 743, Lynch v. The State, 9 Ind., 541, and People v. Toch Chew, 6 Cal., 636. — 538 — Third. The next question is, whether the rulings of the court were correct, relative to the admissibility of testimony in the several instances mentioned in the motion. The court allowed one Joyce to testify that, in the month of May previous to the homicide, the accused, while planting corn near the residence of the witness, who was his brother-in-law, told him that he should not be there to gather it; that he should be in Kansas; and requested him to gather the corn and see to his family. We think this evidence was properly permitted to go to the jury as tending in some degree, especially in connection with other evidence, to show the prisoner’s state of mind during the month previous to the homicide. The fact that the language might possibly have ' an innocent meaning did not prevent its consideration by the jury, who would of course be called upon to decide whether such was the fact, or whether it was a dark hint thrown from a mind that already felt the shadow of the coming tragedy. If the former was the true interpretation, the language would go for nothing and could not possibly prejudice the accused. If the latter, it was clearly admissible as within well established principles. Remote and obscure allusions to the act in contemplation are admissible as tending to show an existing disposition or design. Burrill, in his valuable Treatise on Circumstantial Evidence, pages 332, 333, in speaking of such verbal expressions, says:—“In these expressions, slight as they may appear, the criminal takes a very material step forward in his career; material both as to its consummation by himself and its future detection and punishment by the law.” * * “ They are sometimes managed with great art; they are thrown out voluntarily and purposely, it is true, but in so obscure and intangible a form as to amount to nothing more than mere general intimations. They are in fact parts of a system of preparation, but of the most preliminary kind, intended to explore the way for more direct action in the future. The criminal ventures no farther than to hint at or obscurely allude to the act he has in contemplation. He proceeds warily, throwing out feelers as it were in advance, — 539 — partly to sound the temper of those among whom he trusts himself, and partly to give an air of probability to the approaching event, and yet to disconnect himself from all apparent agency in producing it.” One Alfred Beeman was permitted, against the defendant’s objection, to testify that the defendant said to him about a week before the homicide, “ I don’t think I shall always be as poor a man as I am now.” And to the witness’s inquiry “What time do you settle the estate?” he replied—“The old man is not dead yet, and he is liable to live ten years.” The witness said—“Yes, of course.” The defendant then said— “Folks talk about me—the neighbors. I will come home drunk some time and give them something else to talk about.” He also said—“ I don’t know but I shall be in Canada in a little less than a week; don’t know but I shall kill some one in a week; that will give them something else to talk about.” This testimony was admissible upon the same principles we applied to that of Joyce, only it is much more significant and important, and rises to the character of a threat, which, from the conversation about the father and his estate, the jury would have the right to construe as aimed at the father. It showed most clearly the revengeful and murderous passions that were taking possession of the mind of the accused. In Hopkins v. The Commonwealth, 50 Penn. St., 9, it was held that “ threats made by a prisoner within an horn’ before the commission of the murder that he would kill somebody before twenty-four hours, were evidence of malice prepense, though they did not expressly refer to the deceased; and that if he killed anybody in pursuance of such malice it was murder in the first degree.” The evidence offered by the accused that “his father was reputed in the neighborhood where he dwelt to be at times insane,” was properly rejected by the court. Insanity is a fact that cannot be proved by reputation. Ashcroft v. De Armond, 44 Iowa, 229; Foster v. Brooks, 6 Geo., 287; Choice v. The State, 31 Geo., 424. It seems to us impossible to suggest a more objectionable instance of hearsay evidence than this, being in effect the — 540 — mere opinions of persons out of court as to another’s insanity, not only without the sanction of an oath and the test of cross-'examination, but without even the facts on which the opinions were based, which would be indispensable in the case of a nonexpert who should give his opinion under oath in court. The State having possession of several letters written by the defendant to his wife, (how obtained or whether they were ever in the wife’s possession did not appear,) offered them in evidence as containing admissions inconsistent with the testimony of the accused given in court and with his claim as to unsoundness of mind. They were objected to by the accused on the ground that they were confidential communications between husband and wife, but the court admitted the evidence. In this ruling the court violated no rule of evidence. The question was not whether the husband or wife could have been compelled to produce this evidence, but whether, wlien the letters fell into the hands of a third person, the sacred of privilege went with them. We think not. 1 Greenl. Ev., § 254a. The fact that the communications in this case were written places "them on no higher ground than if they were merely oral. And as to the latter, it is well settled that conversations between husband and wife are not privileged so as to prevent a third person who overheard them from testifying.. 1 Bishop’s Crim. Proc., § 1155. In State v. Centre, 35 Verm., 378, it was decided that a conversation between the prisoner, a married woman, and her husband, tending to show an admission of her guilt to him, and overheard by a witness in an adjoining room, was not such a confidential communication as the law excludes as evidence. And in Commonwealth v. Griffin, 110 Mass., 181, on trial of an indictment for manslaughter, it was held that a private conversation between husband and wife, who thought no one overheard them, may be testified to by a concealed listener. See also Hendrickson v. The People, 1 Parker’s C. C., 406 ; Rex v. Simons, 6 Car. & P., 832. "——The motion further shows that the accused introduced evidence to prove that his sister had been insane about, six — 541 — years, and complaint is made because the court permitted the prosecutor on cross-examination to inquire what caused such insanity, in order to show that it was not hereditary. This is no ground for a new trial. Obviously one of several children might be insane from many causes that could not possibly affect the others. If therefore the testimony in chief was relevant at all (which is doubtful,) there is no possible ground for its admissibility unless it tended to show a taint of insanity descending with the parental blood. So that the cross-examination was strictly legitimate as calculated to furnish an instant and perfect test of the value of the testimony. Again, the accused having introduced evidence tending to show that he was of unsound mind when he committed the homicide, the court permitted the State in rebuttal to offer evidence to prove that the defendant was of sound mind at the time in question. To this the accused objected, on the ground that the burden rested on the State to prove that the defendant was of sound mind when he committed the homicide and that the testimony should have been offered in chief. This precise point was made by the accused when his case was previously before this court and was decided adversely to his claim. State v. Hoyt, 46 Conn., 331. This ought to be satisfactory, especially when all the authorities accord with that decision. Commonwealth v. Eddy, 7 Gray, 583; Comwonwealth v. Heath, 11 Gray, 303; State v. McCoy, 34 Miss., 531; United States v. McGlue, 1 Curt., 1; People v. Robinson, 1 Park. Cr. C., 649; Walter v. The People, 32 N. York, 147; State v. Starling, 6 Jones Law (N. C.), 366; Loeffner v. The State, 10 Ohio St., 598; People v. Garbutt, 17 Mich.9; Fisherr. The People, 23 Ill., 283; State v. Klinger, 43 Misso., 127. The only remaining question of evidence relates to the testimony of one Thomas, a witness offered by the State to pi’ove the mental condition of the accused, and who testified that within an hour or two after the homicide the accused stated what amount had beexx received by him from the witness, who soon after referred to his book and found the — 542 — amount stated correct. The counsel for the accused objected unless the book should be produced, whereupon the witness said that he would send for it, and then, without further objection or any ruling by the court, proceeded to testify that the account consisted of several items, that he thought the amount was about forty-three dollars, but could not state it accurately. It did not appear whether or not the book was sent for, but the motion says that “no request for the production of the book was afterwards made by the counsel for the accused, and the objection to the evidence of Thomas was not further pressed.” It is clear that this furnishes no ground for a new trial. There was no objection to the evidence itself, but only to the evidence without the book. When the witness promised to send for the book the counsel for the accused were satisfied, and without asking for or obtaining the ruling of the court allowed the witness to proceed. And as the witness stated that he could not then recollect the amount named' by the accused nor the amount he found upon the book, only that they were the same, the book was of no importance to the accused in testing the recollection of the witness nor in a cross-examination, nor indeed in any aspect of the case. The object was not to exhibit or prove an account. The force of the testimony consisted exclusively in the fact that near the time of the homicide, when the accused claimed to be unconscious, he-showed such accuracy of memory. The witness himself had verified this accuracy by reference at the time to his book.. The fact of such verification he was able to state, but could, give in court no details or data to enable the jury to verify it themselves. The reason therefore why “the production of the book was not demanded and the objection was not further pressed,” is manifest. We consider the demand for the book tacitly waived, and that the accused was not aggrieved by its non-production. Fourth. The last general topic for our discussion relates-to the validity of the sentence. The precise question for' review is, whether the omission of the court to make formal inquiry of the accused if he had anything to say why sentence. — 543 — of death should not be pronounced against him, furnishes sufficient ground for a new trial, or is a fatal defect in the judgment? Upon principle it can be no ground for a new trial. There was no mis-trial. The error (if any) did not enter into or in any manner affect the verdict. It did not issue out of it, but was entirely independent, and occurred after the rendition and recording of the verdict. So that the verdict must stand; and if the judgment should be arrested or set aside, the case should go back to the Superior Court to be proceeded with from the point where the error intervened, that is, the court would be called upon to make the inquiry referred to, and then pronounce sentence again. This course is not only dictated by principle, but is in accordance with the preponderance of authority. 1 Bishop’s Crim. Proc., § 1293; State v. Johnson, 67 N. Car., 59; State v. Jacocks, 5 Jones Law, 259; Keech v. The State, 15 Florida, 591; Kinsler v. Wyoming Territory, 1 Wy. Ter. R., 112. But was the omission referred to fatal to the validity of the sentence ? It is conceded that it would have been so under the common law and practice in England. The rule there is stated in 1 Chitty’s Crim. Law, 700, as follows:—“It is now indispensably necessary, even in clergyable felonies, that the defendant should be asked by the clerk if he has anything to say why judgment of death should not be pronounced on him; and it is material that this appear upon the record to have been done.”' * * “ On this occasion he may allege any ground in arrest of judgment, or plead a pardon, if he has obtained one, for it will' still have the same consequences which it would have produced before conviction, the stopping of the attainder. If he has nothing to urge in bar, he frequently addresses the court in mitigation of his conduct, and desires- their intercession with the king,, or casts himself upon their mercy.” In this connection it is also to be considered that anciently in- England a person on trial for a felony was not allowed counsel. The presiding judge in theory was his counsel, but — 544 — did not represent the accused in the sense that counsel do with us. If therefore the judge omitted anything which was the right or privilege of the accused, it was considered the act of the court, which could in no wise prejudice the prisoner,' and the rights of the latter could not be waived as may now be done. If we compare the rules and practice that obtained in England with our own it will readily be suggested that the reasons that made the inquiry of the prisoner so essential do not apply at all in this state. Here the accused has always had counsel to represent him, vigilant to guard every right and claim every privilege deemed essential to his deliverance. The counsel well know that the verdict does not conclude the prisoner—they know all the remedies for ulterior relief and when and how they must be instituted. They are present when the prisoner, on motion of the Attorney for the State, is set at the bar to receive his sentence. They know that the court is open to hear any request, motion or objection, and that if the accused desires to say anything the court will grant him the privilege if he or they should so indicate. Under our practice what possible harm can be occasioned to the prisoner by such an omission on the part of the court ? He can have no pardon to plead, for that can only come from the legislature after sentence, no attainder to save, no benefit of clergy to pray for. If he should say anything suggesting ground for some relief, his saying it would not be the remedy; it would have to take on some other legal form and be filed within the time prescribed. If he should in a capital case urge mitigating circumstances and put himself on the mercy of the court, it would avail nothing, because the court would have no discretion to exercise in regard to the punishment. If, as suggested in the argument, a possible utility of such inquiry might be to discover the prisoner’s condition of mind as to sanity, we reply, not only that it would have no adaptation to such a purpose, but if it had there is no need of any such expedient under our law, which humanely allows a full year to intervene between the date of the judgment and its execution—afford — 545 — ing most ample opportunity for such discovery or for any relief from the consequences of the conviction to which he may he entitled. In this state as to all crimes below that of murder the common law rule has never been observed in practice. In capital cases it has been observed as a formality befitting the gravity and solemnity of the occasion, but not so essential to the validity of the proceedings as to be made a necessary part of the record as is required in other jurisdictions. Judge Swift, in the second volume of his Digest, p. 417, says expressly of the inquiry referred to:—“ This is rather matter of form, as all legal means of defence have been previously exhausted.” And as matter of form it may easily be waived, and was waived in the present case. If counsel were present and no request was made of the court to be heard, and no objection was made to being sentenced without being heard, we think it would amount to a waiver of this formality. But in this instance there was a waiver of the most deeisive character, even if we should regard the inquiry as one of the prisoner’s rights. The only purpose of making the inquiry is, that the prisoner may know that the verdict does not conclude him; that he may do something or say something to arrest the judgment. If he actually did move in arrest of judgment it is surely enough. The record in this case shows that the accused made a formal motion in arrest of judgment based on allegations of fact, and that the court made full inquiry into the truth of the allegations and finding them untrue overruled the motion. He might also have moved in arrest at the same time because the inquiry referred to was omitted; but he did not, because the other matter was all he had to say why sentence should not be pronounced. But he did say a good deal more in regard to the trial. He filed an elaborate motion for a new trial, embracing the sixteen distinct points we have considered; also a bill of exceptions containing the same specifications, (which we ought to say in passing was, as to all matters for which a new trial would lie, in defiance — 546 — of a rule of this court; Rules of Practice, Chapter 4, sect. 1;) also a motion in error based on the bill of exceptions. After all this it would seem a most absurd, frivolous and idle ceremony for this court to set aside the judgment and remand the case to the Superior Court-, to the end that the accused may be asked “whether he has anything further to say.” We are happy to observe that some of the courts in the 'United States are beginning to look upon this ancient requirement as a formality, the omission of which will not always invalidate the judgment. State v. Johnson, 67 N. Car., 59; Grady v. The State, 11 Geo., 253; Sarah v. The State, 23 Geo., 576; State v. Ball, 27 Misso., 324; Jeffries v. The Commonwealth, 12 Allen, 145; 1 Bisb. Crim. Proc., § 1358. There was no error in the judgment complained of, and a new trial is not advised. In this opinion the other judges concurred.