People v. Mol

Carpenter, J. Respondent was convicted in the superior court of Grand Rapids of the charge of corruptly •accepting $350 to vote as an alderman in favor of the city of Grand Rapids entering into the same water contract which was before this court in People v. Salsbury, 134 Mich. 537 (96 N. W. 936), and People v. McGarry, 136 Mich. 316 (99 N. W. 147). Six of the men who sat as jurors on respondent’s trial had only a few days before assented to a verdict of guilty in the case of People v. Jacob P. Ellen. Respondent exhausted his peremptory challenges. He challenged these jurors for cause. The trial court overruled his challenge. "Was this ruling error ? The informations in the Ellen Case and in this case, except in the name of the respondents, were exactly alike. ‘The name of every witness who testified in this case was indorsed upon the information in the Ellen Case. The principal witness in each case was Lant K. Salsbury. He ■gave substantially the same testimony in each case. In this case he testified to bribing Ellen. In the Ellen Case it is to be inferred that he testified to bribing Mol. Most of his testimony and substantially all the corroborating testimony consists of the details of the conspiracy, admissible .alike in each case. In that case it is to be inferred that he testified more particularly about Ellen, and in this case more particularly about Mol. The difference between the — 694 — two cases, then, consists in the particular application of. substantially the same testimony to different defendants, together with the fact that in the Ellen Case there is opposed to it the denial of Ellen, and in this case there is opposed to it the denial of Mol. Five of these jurors, in reply to questions on their voir dire, said they had formed no opinion of the guilt or innocence of respondent. One of them said: “If the case is; just alike, I have; if it is not, I have not.” Did the court err in deciding that these jurors were qualified ? If this decision is to be governed by common-law principles, the decision of the trial judge was correct. It was resolved by all the judges in the Regicide's Case, 5 How. St. Tr. 978, in the year 1660: “ That if several persons be indicted together in one indictment for one crime, in case some of them be found guilty by one jury, and afterwards some of the same jury be returned for trial of others in the same indictment, it is no challenge for those prisoners to say that those jurors have already given their verdict and found others guilty who-are indicted in the same indictment for the same offense;, for * * * in the law it is the several indictment against every one of them, and the crime is several, and one may be guilty and not another, and the jury are to-give their verdict upon particular evidence against every several person, and therefore the finding one guilty is no argument or presumption that those jurors will find another guilty.” . In the trial of Peter Cook at the Old Bailey, before Lord Chief Justice Treby, in 1696 (13 How. St. Tr. 313), counsel for respondent said: “Here are some persons returned upon this panel that were formerly jurors in a cause that was tried for the same species of treason that this gentleman, the prisoner, is charged with in this indictment; and I think the witnesses at that trial did mention in their evidence my client as being present at those very consults about which they gave their evidence. These gentlemen gave credit to those witnesses and found the verdict against the person then accused. We humbly submit it to your lordship and. — 695 — the court whether we may not for this cause challenge this person as not indifferent, it being for the same cause and consult that the other was tried for.” To this the Lord Chief Justice replied: “ Well, there is nothing in it.” These decisions, which have been followed by some courts in modern times (see U. S. v. Wilson, Baldw. 84 [Fed. Cas. No. 16,730]; Dew v. McDivitt, 31 Ohio St. 139; State v. Williams, 31 S. C. 238 [9 S. E. 853]; Thomas v. State, 36 Tex. 315; Bowman v. State, 41 Tex. 417), were pronounced before there was any judicial acceptance of our modern conception of a jury as a tribunal which should dispose of a controversy solely on the testimony introduced before them. When they were made, while jurors heard testimony produced by the parties, their verdict was not, as we might infer from the rule in the Regicide’s Case, based solely upon that testimony. They might, as is shown by the following authorities, in accordance with the ancient practice still in part existing, use in the decision of a controversy their private knowledge of facts, or, it seems, their private information concerning them. See 2 Pollock & Maitland, History of Eng. Law, p. 622. In Bushell's Case (this case arose from an imprison-, ment of the jurors who had acquitted William Penn of a criminal charge), decided in 1670 (see 6 How. St. Tr. pp. 1010, 1011), the right of a court to fine and imprison a juror for rendering a verdict in favor of the defendant in a criminal case, against the manifest testimony, was judicially denied on the ground that— “The judge * * * can never know what evidence the jury have. * * * Being returned of the vicinage whence the cause of action ariseth, the law-supposeth them thence to have sufficient knowledge to try the matter in issue, though no evidence were given on either side in court. * * * They may have evidence from their own personal knowledge by which they may be assured, and sometimes are, that what is deposed in court is absolutely false.” — 696 — In the Case of Tutchin, 14 How. St. Tr., at page 1100, decided in 1704, the issue in the case was whether the defendant was the author of a certain libel. A person called as a juror stated that he had read the alleged libelous publication, and publicly disallowed them, and he did not doubt defendant was the author of them. The attorney general answered : “ If this gentleman knows him to be the author of them, he is proper to be on the jury, for the jury are by law to be of the neighborhood of the place where the fact is alleged to be done, because they are presumed to know what is done there.” It is to be inferred that this argument was approved by Lord Chief Justice Holt, who presided at the trial. As the juror at the common law was not compelled to render his verdict on the testimony given in court, it was no ground of challenge, as some courts have held (see People v. Vermilyea, 7 Cow. 108), that he had knowledge that would prevent his rendering such a verdict. At the common law the challenges to jurors for affection or partiality were of two kinds: (1) “For principal cause;” (2) “to the favor.” A challenge is called principal “because, if it be found true, it standeth sufficient of itself, without leaving anything to the conscience or discretion of the triors.” 1 Co. Litt. 156b. Relationship to one of the parties or interest in the subject-matter of the litigation furnish illustrations of grounds for challenges for principal cause. Challenge to the favor (and the challenge under consideration is challenge to the favor, Stephens v. People, 38 Mich. 739) “is when the party •alleges any such exception against one or more of the jurors, which is not forthwith sufficient upon acknowledgment of the truth thereof, but rather arbitrable and considerable by the rest of the jurors.” State v. Sawtelle, 66 N. H. 508 (32 Atl. 831). “It showeth causes of favor which must be left to the conscience and discretion of the triors, upon hearing their evidence, to find him favorable or not favorable.” 1 Co. Litt. 157b. — 697 — ‘ ‘ In this form of challenge probable circumstances of suspicion, such as great intimacy with one party, or strife and quarrels with the other, any acts or sayings indicating affection for one or malevolence toward the other, in short, anything tending to show a motive on the part of the juror to favor one party or to wrong the other, may be alleged and proved.” State v. Sawtelle, supra. The question raised by this challenge was not that a juror had knowledge or opinions which would prevent his deciding the case according to the evidence, but it was that because of affection toward one party or of hatred toward the other, or because of some other similar motives, he would not decide the case according to the truth. This is illustrated by the following decisions: In 1429 (see 7 Hen. VI. 25, pl. 8), in an action of replevin, a juror was challenged “for that he was favorable.” Babington, C. J., submitting the questions to the triors, said: “Do you know, triors, what is meant by favorable? He is favorable who, whether the matter is true or false, will pass for one or the other. * * * But, if one has said twenty times that he will pass for the one or the other party, you will inquire upon your oath whether the cause is for the affection he has for the party, or for the knowledge he has of the matter in issue; and if it is for the affection he has for the party, then he is favorable, but' otherwise he is not.” Said Newton, J., in a case decided in 1442, reported in 20 Hen. VI. 40, pl. 9 (see State v. Sawtelle, supra): “ And if a juror say that he will pass for the plaintiff, his saying is no cause for withdrawing him, unless it is found by the triors or by the court that he said this more for favor than for the truth of the matter.” In Rex v. Edmonds, 4 B. & Ald. 490, decided in 1821, Abbott, C. J., speaking for the court, said: “The language of Mr. Sargeant Hawkins upon this ¡subject (4 Hawkins, Cr. Pl., bk. 2, chap. 43, § 28) is ■that, if the juryman ‘hath declared his opinion beforeliand that the party is guilty, or will be hanged, or the — 698 — like, yet if it shall appear that the juror hath made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge.” So that, in the opinion of this learned writer, the declaration of a juryman will not be a good cause of challenge, unless it be made in terms or,under circumstances denoting an ill intention towards the party challenging. A knowledge of certain facts, and an opinion that those facts-constitute a crime, are certainly no grounds of challenge; for it is clearly settled that a juryman cannot be challenged by reason of his having pronounced a verdict of guilty against another person charged by the same indictment.”’ The supreme court of New Hampshire was justified in. saying in State v. Sawtelle, supra (this case contains a-careful and painstaking analysis "of nearly all the common-law decisions on the subject, and it has been of great-aid in the preparation of this opinion): ‘ ‘ In ancient times the law esteemed those who, being without motive to favor either party, had immediate and personal knowledge of the facts in dispute, to form the best conceivable tribunal for the determination of the issue. * * * The common law esteems jurors indifferent who have no motive to find for or against either party. All the valid objections to their competency, propter affectum [that is, for affection or partiality], whether for principal cause or for favor, rest on a motive presumed by law, or proved as a fact, to find for one or the other party.” We are forced to the conclusion, therefore, that our conception of a jury as a tribunal who should dispose of the case solely from the testimony produced before them did not come from the ancient rules of the common law. We are bound to say that the provision in the Constitution of Michigan (article 6, § 28), which, like the provision in other American constitutions (see Constitution of United States), gives the accused a right to trial by “an impartial jury,” gave him a right to trial by jurors qualified to dispose of the case upon the testimony presented to them. A jury is not impartial “whose members are already so impressed with the guilt of the accused that evidence will be required to overcome such impressions.” See Stephens v. People, — 699 — 38 Mich. 739. See, also, Smith v. Eames, 4 Ill. 76 (36 Am. Dec. 515). The decisions heretofore referred to, which hold that one who had participated in a trial of another person accused by the same indictment is not disqualified to sit as a juror, which proceed, as they do, upon the ground that a juror need not be qualified to determine a case upon the testimony, have therefore no application to the practice required by our Constitution; and it is our duty, as we have already before declared, to disregard them. See People v. Troy, 96 Mich. 530 (56 N. W. 102). The question, then, is, not what was the practice at common law, but were those jurors who had agreed to a verdict of guilty in the Ellen Case impartial jurors under the meaning of our Constitution ? Of course, the mere fact that they formed an opinion, if that opinion would not influence their verdict, would not disqualify them. See People v. Quimby, 134 Mich. 625 (96 N. W. 1061).. But in the Ellen Case it was their duty to consider testimony which indicated both the guilt of Ellen and respondent. That testimony convinced them beyond a reasonable doubt that Ellen, who had the opportunity of being heard, was guilty. Are we warranted in assuming that they reached no conclusion respecting the guilt of respondent, against whom the testimony was almost equally strong, and who was not heard? Can these jurors, having already said that substantially the same evidence which is introduced in this case convinced them of the guilt of Ellen, enter upon the trial of respondent presuming him to be innocent ? These questions answer themselves. The jurors who had determined that this evidence proved Ellen’s guilt would stultify themselves if they determined that it did not convince them of respondent’s guilt. The evidence of respondent’s guilt was introduced in the Ellen Case as affording additional evidence of the latter’s guilt. It was the duty of the jury to give due weight to that testimony. It should be presumed that they did their duty. It is not unfair to presume that in doing this duty they determined — 700 — respondent’s guilt, for that determination is in harmony with their verdict. If they did in fact make such a determination, I think all will concede that they were disqualified to sit as jurors. While, as I have endeavored to show, the qualifications of jurors are not now tested by the rules of the common law, it is not improper to say that according to those rules a juror was disqualified who had “given a verdict upon the same title or matter.” 1 Co. Litt. 157&. It cannot be denied that it is possible that a juror may be so peculiarly constituted that his rendition of the verdict in the one case would have no influence upon his action in the other. But, in my judgment, this question must be disposed of upon the assumption that all jurors possess the characteristics common to ordinary men. We certainly cannot permit all jurors who had participated in the first trial to sit in the second, upon the assumption that their natures were so extraordinary that they had formed no disqualifying opinion. That assumption would compel the accused to be tried by men who had prejudged his case. Neither is it possible to determine by an investigation whether jurors have formed conclusions in the first case which disqualify them from sitting in the second. From the nature of the question to be investigated, no valuable testimony can be obtained, except from the jurors themselves. You cannot ask the juror whether, from the testimony presented in the first trial, he formed an opinion respecting the guilt or innocence of the accused, without opening the door to inquiries which will disclose the precise grounds upon which he reached the conclusion cf guilt. If the practice at common law permitted any •such investigation, which I doubt (see Rex v. Edmonds, supra), though it was adopted in U. S. v. Wilson, Baldw. 84 [Fed. Cas. No. 16,730], such practice is now prohibited by our statute. Section 10239, 3 Comp. Laws. See Welch v. Publishing Co., 83 Mich. 661 (47 N. W. 562, 11 L. R. A. 233, 21 Am. St. Rep. 629). I think we are bound to conclude, therefore, that persons — 701 — who have sat as jurors in a case where they had an opportunity to judicially determine upon substantially the same testimony the question of respondent’s guilt or innocence are not the “impartial” jurors to which he is constitutionally entitled, and that, therefore, the court erred in the ruling under consideration. These views are in harmony with our own decision .in People v. Troy, 96 Mich. 530 (56 N. W. 102), and with the following cases: Smith v. State, 55 Ala. 1; Wickard v. State, 109 Ala. 45 (19 South. 491); Brown v. State, 104 Ga. 736 (30 S. E. 951); Garthwaite v. Tatum, 21 Ark. 336 (76 Am. Dec. 402); Railway Co. v. Smith, 60 Ark. 221 (29 S. W. 752); Swarnes v. Sitton, 58 Ill. 155; Apperson v. Logwood, 59 Tenn. 262. Neither may it be contended that the question we have considered was not fairly presented to the trial judge. After respondent’s counsel had exhausted his peremptory challenges, he urged in support of his challenge to the jurors who had sat in the Ellen Case that the witnesses who had testified in the Ellen Case would be the witnesses in this case, and that their testimony would be substantially the same. The court overruled this challenge, not upon the ground that counsel was incorrect in his statement, but because the two cases were not “identical * * * in the main point;” that is, as stated by counsel for the people : “ The issue in that case was whether Mr. Ellen was bribed. The issue in this is whether Mr. Mol was.bribed. One might be guilty, and the other innocent.” In short, the trial judge had occasion to decide, and did decide, the very question we decide, viz., Does the legal difference between the two issues which* unquestionably exists — the fact that in the one case the issue relates to the bribery of Ellen and in the other to the bribery of Mol — render jurors who sat in the one case competent to to sit in-the other? He held that it did. We are compelled to hold that it did not. — 702 — Nor can it be said that, because at common law the decision of the triors whose determination whether jurors were favorable or not was final, the decision under consideration cannot be reviewed by this court. It is settled that we have a right to review those decisions when they raise legal questions. See Stephens v. People and People v. Troy, supra. Respecting the other questions raised in the case I concur in the opinion of my Brother Grant. I think, for the error pointed out, the conviction should be set aside and a new trial ordered. Moore, O. J., Montgomery and Hooker, JJ., concurred with Carpenter, J.