State v. Hartley , 22 Nev. 342 ( 1895 )

The facts sufficiently appear in the opinion. On the 26th day of July, 1894, the defendant, Alice M. Hartley, killed M. D. Foley, in her rooms, in the building of the Nevada bank, in the town of Reno, Washoe county, Nevada, by shooting him with a pistol, for which she was indicted for the crime of murder on the 3d day of August, 1894, by the grand jury of that county. Subsequently she was tried in the district court of said county, found guilty of murder in the second degree by the verdict of the trial jury, and by the judgment of the court was sentenced to serve a term of eleven years in the state prison. The defendant appeals from the judgment of the district court, and from the order of the court denying her motion for new trial. The record is replete with objections made and exceptions taken by the defendant to the proceedings and rulings of the trial court from the beginning to the termination of the case.

1. The Grand Jury: In the Statutes of 1893 (page 31) it is provided that twelve persons shall be summoned to appear as grand jurors, and out of the number so summoned the court shall select ten persons, who shall constitute the grand jury. By the same statutes (page 43) it is provided that an indictment shall not be found without the concurrence of eight grand jurors. The grand jury to which objection is made was selected and impaneled under the provisions of the General Statutes (sec. 3795), which require that twenty-four persons shall be selected and summoned, and of this number the court shall select seventeen persons to constitute the grand jury. Sections 4106 and 4107 require the concurrence of twelve grand jurors to find an indictment. The contention of the defendant is that the grand jury should have been organized in pursuance of the provisions of the Statutes of 1893, and, not having been so organized, that it was an Illegal body. At common law, the grand jury may consist of any number between twelve, as the minimum, and twenty-three, as the maximum, and an indictment found without the concurrence of at least twelve grand jurors is invalid.

As to these common-law rules, all the elementary writers on the subject are agreed, and they are recognized by a great number of the courts of last resort. Of these we cite 2 Hawk. P. C. 295; Hale, P. C. 161; Co. Litt. 156b; 1 Chit. Cr. Law, 306; Forsyth, Jury Tr. 178; Cooley, Bl. 304; Story, Const., sec. 1784; King v. Marsh, 1 Lead. Cr. Cas. 260; State v. Davis, 2 Ired. 153; Com. v. Wood, 2 Cush. 149; Low's Case, 4 Greenl. 439;Hudson v. State, 1 Blackf. 317; People v. Hunter, 54 Cal. 65; State v. Symonds,36 Me. 128; State v. Ostrander, 18 Iowa, 453.

"No man can be convicted at the suit of the king of any capital offense unless by the unanimous voice of twenty-four of his equals and neighbors; that is, by twelve at least of the grand jury in the first place assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial." (Cooley, Bl., 3d ed., 304.)

At the time of the adoption of the constitution of Nevada, wherein it is declared, "No person shall be tried for a capital or other infamous offense * * * except on presentment or indictment of a grand jury" (art. I. sec. 8), the provisions of the General Statutes (secs. 3795, 4106, 4107) which are declaratory of the common law were in force, being enacted by the territorial legislature of 1861. We, therefore, conclude that, when the people of this state adopted this constitutional provision, they, had in view a "grand jury," as it existed at common law and under the statutes at the time of the adoption of the constitution. It is so held by this court with reference to the right of trial by jury in construing the third section of the same article of the constitution. (State v. McClear, 11 Nev. 39.) The reasoning in that case is applicable to the question at bar.

Defendant's counsel cite a great number of authorities to the effect that a grand jury may consist of a less number than twenty-three, but we are not referred to any authority holding that the number may be less than twelve, or that less than twelve can find an indictment under the common law or constitutional provision similar to ours. The authorities cited are not in point. So, waiving all question as to how the objection to the grand jury should have been raised, or whether it was properly raised by the various motions and objections made in the case, we are of the opinion that the district court did not err in holding that the said Statutes of 1893 are unconstitutional, and that the grand jury which found the indictment was a legal body.

2. The Trial Jury: The defendant's counsel urge as objections to the trial jury that "seven of the jurors were prejudiced against the defendant, and were disqualified under the common law and under the constitution and statutes of Nevada," and that "the right to have an impartial — that is, a constitutional — jury cannot be waived by the defendant, much less by the defendant's attorneys." Their objections go to the jurors Kinney, Coffin, Haish, Palmer, Fulton, Bryant, and Johnson. In answer to questions asked by defendant's counsel touching their qualifications as jurors, several of them, each, frankly answered that he had formed an unqualified opinion as to the guilt or innocence of the accused. Under this state of facts, the defendant and her counsel failed to challenge any of the six jurors first above named, but accepted them without objection.

It is now urged by counsel with great earnestness and ability that, by reason of the disqualification of these jurors, the defendant did not have a fair and impartial trial — a trial by jury as guaranteed by the constitution. This contention will not stand the test of reason and authority. At the time of the adoption of the constitution of this state, the manner of impaneling trial jurors, and the mode of determining their qualifications, and the right of the defendant to waive his objections to the qualifications of the jurors, and the consequences of such waiver under the statute and common law, were well understood.

The Common Law: "When the taial is called on, the jurors are sworn as they appear to the number of twelve, unless they are challenged by the party. Challenges may be here made on the part of the king or on the part of the prisoner, either to the whole array or to the separate polls, for the very same reason that they may be made in civil cases." (4 Cooley, Bl., 3d ed., 350; 2 Hale, P. C. 293.) "No juror can be challenged without consent after he hath been sworn either in criminal or civil cases, unless it be for some cause which happened since he was sworn." (Bac. Abr. "Juries," 365.) "If a party have cause of challenge, and know of it in time enough before trial, if he do not challenge he shall not have a new trial." (Id. 366.)

The Statute: By the statute enacted in 1861, and in force at the time our constitution was adopted, it was provided that "a challenge to an individual juror must be taken when the juror appears, and before he is sworn; but the court may, for good cause shown, permit it to be taken after the juror is sworn, and before the jury is completed." (Gen. Stats., sec. 4214.) This statute is confirmatory of the above common-law rules.

From the citations it is clear that, both under the common law and the statute existing at the time the constitution was adopted, a defendant could waive an objection to a juror, and that he did waive it unless the challenge was taken prior to the jury being completed; and especially was this the case when the ground of challenge was then known. As already noted, it was the right of trial by jury as it then existed that the framers of the constitution provided should remain inviolate forever, and there is no reason to suppose they intended any change in the rule as to waiver. These views may be fortified by reference to the decided cases.

The Decisions: In the case of the State v. Pritchard, 16 Nev. 101, in considering the above section (4214) of the statutes, the court says: "The state, as well as the defendant, is required to interpose its challenges before the jury is completed. This provision of the statute must be complied with. Whenever it appears from the examination, upon his voir dire, that a juror is disqualified by reason of the existence of any fact which is made the ground of challenge, the juror must be challenged, as specified in the statute; otherwise the party, whether the state or the defendant, will be considered as having waived the right of challenge." "If a defendant accept a juror without objection whom he knows to have formed or expressed an unqualified opinion, he cannot after verdict raise this objection. If he willfully take his chances with such juror, he must abide the result." (State v. Anderson,4 Nev. 265; Bronson v. People, 32 Mich. 34.) "The constitution secures to an accused person the right to be tried by an impartial jury, and the legislature has no power to deprive him of such right; but it can regulate its administration by determining and declaring when and how a juror's partiality shall be ascertained." (State v. Maries, 15 Nev. 33.)

Not only must the defendant make his objections and take his challenges before the jury is completed, as appears from the above authorities, but the particular ground of challenge must be stated. (State v. Squires, 2 Nev. 230;State v. Raymond, 11 Nev. 106; State v. Gray, 19 Nev. 212; State v. Vaughan (decided at the last term of this court), 22 Nev. 285.)

The authorities cited by counsel are cases mainly in which the courts had under consideration the rights of the defendant where the discovery was made after trial that a disqualified person had sat on the jury, and in cases where the juror was challenged for cause, and his challenge denied by the lower court. Such authorities are not in point in this case as to these six jurors, for the defendant was fully informed of the alleged disqualification before trial, and before the jury was completed, and no objection was raised and no challenge taken to any of them.

It is therefore evident from the great weight of the authorities, and from the statute and common law, that a defendant can waive his objections to the qualifications of jurors, and if he fail to challenge before the jury is completed, knowing of the disqualification, he is estopped from demanding, as matter of right, a new trial on the ground that the jury were notomni exceptione majores, and that, in contemplation of the constitution, he has not in such case, after verdict, constitutional ground for the objection that he has not been tried by a "constitutional jury."

3. Juror Johnson: The juror Johnson was challenged upon the ground, as it is alleged, "of having formed an unqualified opinion as to the guilt or innocence of the defendant." The challenge was denied, and exceptions taken. The ruling of the court denying the challenge is assigned as error. When the jury was completed, the defendant had not exhausted her peremptory challenges, but had one left, which she did not use at all. In Thompson on Trials (section 115) it is said: "The sound and prevailing view is that a party cannot on error or appeal complain of a ruling of the court in overruling his challenge for cause if it appear that, when the jury had been completed, his peremptory challengeswere not exhausted, since he might have excluded the obnoxious juror by a peremptory challenge; and therefore the error is to be deemed an error without injury." (State v. Elliott, 45 Iowa, 486; Parker v. People,4 Neb. 68; Sharp v. State, 6 Tex. App. 650.) Many other cases might be cited holding the same rule. In note 1 to section 115, Thompson says: "There is some slight and ill-considered authority to the effect that no obligation rests upon a party to make use of his peremptory challenges for the purpose of excluding a juror unsuccessfully challenged for cause." Our opinion as to the true rule of practice in such case accords with "the sound and prevailing view" above named.

4. View of the Premises: In strict conformity to the provisions of section 4257 of the General Statutes, and at the repeated requests of the attorneys of the defendant, made in her presence, the court ordered that the jury view the place where the homicide occurred. W. H. Caughlin, the sheriff, was designated by the court to conduct and show the jury the premises. The sheriff and his two deputies were sworn to take charge of the jury during recess of the court, and recess was then taken for the purpose of the jury making the view. Neither the judge, the clerk, the defendant, nor either of her attorneys was present at the view. The defendant and her attorneys were present in court when said orders were made and recess taken as aforesaid, and knew that said view was about to he taken without the presence of said judge and clerk, and without the presence of the defendant and her attorneys, and without the presence of either of them; and no objection was made thereto, and no suggestion concerning the same was made by the defendant or her attorneys.

It was claimed on motion for new trial, and was pressed by counsel in argument here, that the district court committed fatal error in permitting said view to he had without the presence of the judge and the defendant. Concerning a view of the premises made by the jury in the absence of the judge and the defendant, there is great diversity of opinion found in the decided cases, based upon different grounds. It is held by high authority that the judge and officers of the court, as well as the defendant, must be present; that a view is taking testimony in the case, and, when made in the absence of the defendant, is in violation of his constitutional right of being confronted by the witnesses against him; and that such right cannot be waived. Other authorities, of equal high standing, and with greater force of reasoning, hold that the right of the defendant to be present with or without the presence of the judge and court officers, if such right exists, is statutory, and not constitutional, and may be waived; that the defendant in a criminal case who asks the benefit of the provisions of a statute must take the benefit just as the statute gives it; that the view is not taking evidence in the case, and is not intended to he so, but simply to enable the jury the better to understand the testimony given in court; that whatever the nature of the rights of the defendant may be in such case, and from whatever source such rights may be derived, he may and does waive the same when the action of the court is taken and the view made on his request, and without suggestion that he desires to be present at the view; and that in such case it is too late to complain after verdict. (Shular v. State, 105 Ind. 290; State v. Reed, 35 Pac. 706; State v. Lee Doon, 34 Pac. 1103;State v. Adams, 20 Kan. 311; State v. Ah Lee,8 Or. 217; State v. Moran, 15 Or. 262; Blythe v. State, 47 Ohio St. 234; Carroll v. State,5 Neb. 32.)

5. The Instructions: The defendant's counsel assign as error the action of the court in refusing to give certain instructions asked by them, and in giving certain instructions of its own motion, on the subject of insanity. No witness testified to any fact tending to show insanity of the defendant on the day of the homicide, and no opinion was expressed by any witness to that effect. No fact or circumstance was developed at the trial in indicating that she was ever of unsound mind; but, on the contrary, in her detailed statement of the conversations had between herself and the deceased in their last interview, and of the acts and movements of each party, and the incidents and circumstances occurring before, during the time of, and after, the fatal tragedy, her testimony shows that upon that day and that occasion her reasoning faculties were in full vigor, and her keen business qualifications were unimpaired and in full activity. The theory of the defense seems to be that the grievous wrongs and atrocious crimes testified to by the defendant as having been inflicted by the deceased upon her six or seven months before the fatal day, in drugging and forcing her to his illicit embraces, upon two occasions, and his refusal on the day of the homicide to sign and give her a paper, duly witnessed, exonerating her to her friends from blame, and acknowledging the paternity of the child she was then carrying as the result of his said illicit intercourse with her, ought to be sufficient to establish her irresponsibility on the ground of insanity, whether or not there is any evidence tending to show insanity at the time of the killing. Such is not the law. It is not sufficient that insanity may exist in the realm of imagination. The rules governing in eases where the defense of insanity is interposed are well established. In the case of theState v. Lewis, 20 Nev. 333, it is held, on reason and authority, that: (1) "The accused is presumed to be sane until the contrary is shown." (2) "Insanity is an affirmative proposition, and the burden of proving it is upon the defense." (3) "Insanity, as a defense to crime, must be established by a preponderance of the evidence." (4)" If the defendant have capacity and reason sufficient to enable him to distinguish right from wrong as to the particular act in question, and has knowledge and consciousness that the act he is doing is wrong and will deserve punishment, he is, in the eye of the law, of sound mind and memory, and should be held responsible for his acts."

It requires pertinent, competent, and satisfactory evidence to establish insanity, as any other alleged fact in the case. It is a well understood rule that, if there is no evidence given tending to establish an alleged fact, no instructions need be given on the matter. "Where there is no evidence that the defendant was insane, instructions upon the subject of insanity will not be reviewed." (People v. Wheeler,65 Cal. 77.)

The instructions given by the court were correct as propositions of law, and the contention of counsel that, the court having instructed the jury on the subject of insanity, it should have given those asked for by them, is not tenable. The error, if any, was in submitting the question of insanity to the jury when there was no evidence tending to establish that plea. The instructions authorized the jury to consider the question of insanity raised by the defendant in her counsel's opening statement to the jury, and raised nowhere else and in no other manner, so far as the transcript shows. The submission of the question to the jury can certainly be no just cause of complaint on the part of the defendant under the state of facts and the evidence. It was giving an opportunity to the defendant to escape conviction on the plea of insanity without any evidence to support it.

6. Instructions as to Defendant's Testimony: Counsel claim that the instructions given concerning the defendant's testimony are error. We think not. The statutes (sec. 4562) make the accused a competent witness in all criminal cases at his own request, but not otherwise; "the credit to be given to his testimony being left solely to the jury, under the instructions of the court." The instructions complained of were considered and approved in State v. Hymer,15 Nev. 49; State v. Hing, 16 Nev. 307; State v. Streeter, 20 Nev. 403; and in many cases in other state courts.

7. Instruction on Facts Cited: The court instructed the jury that even though they should find that at the time of the shooting, and prior thereto, the deceased had perpetrated certain wrongs upon the defendant, enumerating them at considerable length, but that she shot at him, not in self-defense, but with the intention of killing him, these facts constituted no legal excuse or justification for the shooting. The defendant objects to this instruction, first, upon the ground that it is misleading, because it recites only a part of the facts relied upon by the defendant as constituting her defense. But, admitting that it does only recite a part of them, we do not see that it could have worked the defendant any injury. It informs the jury that, as matter of law, certain facts constitute no defense to the indictment. If other facts existed which did not constitute a defense, they were not excluded from the attention of the jury; and, if they did not constitute a defense, their omission was rather in defendant's favor, as it left the jury at liberty to infer that they did. There is no intimation that the court considered these the only facts in the case, nor does the language justify such an inference.

Furthermore, if the instruction is right as far as it goes, the fact that it does not cover the whole case does not make it erroneous. If other facts existed which the defendant's attorneys wished particularly called to the jury's attention, they should have requested an instruction upon them.

Next, it is objected that it "charges the jury as to the effect of the evidence, and charges them that the evidence relied upon constitutes no excuse or justification." In this connection we must remember what the issue in this case was. The killing being admitted, the only legal excuse or justification there could be was accident or self-defense. Both of these are carefully excluded by the instruction. The jury were told that if the "defendant knowingly, intentionally, and not in necessary self-defense," shot at deceased with the intention to kill him, then the other facts enumerated constituted no excuse or justification. That the instruction states the law correctly cannot be gainsaid. While it was in the power of the jury to acquit the defendant, because of the treatment she testified to having received at the hands of the deceased, as stated in the instruction, they had no legal right to do so. When one human being has been killed by another what shall constitute excuse or justification for the act is carefully stated in the statute, under the heads of "Involuntary Manslaughter" and "Self-defense." These defenses the statute describes affirmatively; that is, it certain facts are found to exist, then the party doing the killing is excused or justified. This instruction simply puts the matter negatively; that is, that certain facts which do not march up to the standard established by the statute were not sufficient. The court intimated no opinion as to whether these facts existed or not, nor what their effect might be in connection with other facts. It was in no sense a charge upon a matter of fact, but purely one of law. All instructions must be given in view of a certain state of facts, and whether the court enumerates these facts or leaves the jury to infer them can ordinarily make no difference, so long as no attempt is made to influence or control their conclusions as to what the facts are. (State v. Loveless, 17 Nev. 424;State v. Watkins, 11 Nev. 30; State v. Anderson, 4 Nev. 265; Territory v. Burgess,8 Mont. 57, 78; Hemingway v. State, 68 Miss. 371,409; Kitchens v. State, 41 Ga. 217.)

But, while we find no error in the instruction as applied to this case, we do not wish to be understood as unqualifiedly approving it. It approaches the border line of error, and under some circumstances might require a reversal of the case.

Several other alleged errors are assigned, which we do not consider of such moment or merit as to demand special attention. We have discussed the prominent points in the case, while we have given the entire record calm and mature consideration. We have found nothing in it militating against the correctness and legality of any of the proceedings of the trial resulting in the judgment we are asked to reverse. While there are many matters and things disclosed in the testimony of the defendant that may justly awaken human sympathies, the sworn duty of the court, in its judicial administration of the matters submitted for its consideration and final determination, requires that it shall in all cases recognize the wise rules of law, well grounded and long established, so essential for the protection of the rights and safety of the community and of the individual, and that it shall make no distinction therein on account of the sex of the party involved or other personal considerations.

Every reasonable request of the defendant was granted by the court below during the progress of the trial, so far as the record shows. She was defended by able counsel of her own choice, and tried by a jury of their selection, which to her and them, before trial, were satisfactory. A wide range was granted to the defendant in bringing before the jury her complaints of the wrongs and alleged crimes committed against her by the deceased, long months before the fatal tragedy. No legal avenue was closed to her in making her defense. Her counsel contested nearly every inch of ground traversed by the prosecution. The jury, under the solemnity of their oaths, found the defendant guilty, from the evidence, of murder in the second degree, for which crime the judgment of the court has been duly made and given.

Finding no material error in the record, our duty will not allow us to stay the hand of the law.

The judgment of the district court is hereby affirmed.