Cruce v. State

59 Ga. 83

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinions

Bleckley, Judge.

1. The showing for continuance was hardly sufficient in respect to the element of diligence. There was no abuse of discretion in denying the continuance.

2. Did the court commit material error in reference to the right of peremptory challenge ? It is necessary, in the first instance, to ascertain whether the presiding judge did, in fact, make any decision to the effect that the prisoners, both together, were entitled to but twenty challenges, and that each severally was not entitled to that number. The bill of exceptions states, that after the panel was put upon the prisoners, and the first juror was sworn upon his voire dwe, counsel for Cruce moved the court to allow Cruce the twenty peremptory challenges to which a prisoner charged with the offense of robbery would be entitled, which number of challenges the court refused to Cruce, and restricted the two prisoners to twenty challenges. The judge certifies that the bill of exceptions is true, adding that the same, with the brief of evidence, and the judge’s explanation on the motion for new trial, contains all the evidence material to a clear understanding of the errors complained of. = In the record is the motion for new trial, and annexed to the motion is a certificate, signed by the judge, in which is found the explanation referred to. The explanation affirms that Cruce did not challenge any juror without receiving the benefit of the challenge, and that the only deeision made by the court on the subject of challenges was, that, as the prisoners had not elected to be tried severally, but desired to be tried jointly, one of them conld not accept and the other reject, a juror, and thus, by antagonistic demands, block the trial. Most probably, when the judge certified to the bill of exceptions, he intended to re-affirm the truth of this explanation, but he omitted to do so in direct terms ; whereas, he directly certified that the bill of exceptions was true. It is impossible that both should be true, unless the word decision, which is italicized by the judge, is inapplicable when the court refuses twenty challenges to one prisoner alone, and restricts both prisoners to that number. But the word is applicable; such a ruling, being made on a motion to settle the number of challenges, is a decision on the subject of challenges. So that, if the bill of exceptions is true, (and the judge certifies, that it is,) there was a decision to the effect stated. In the bill of exceptions, that decision is excepted to and assigned as error, quite independently of the motion for new trial. ■ It is, therefore, before this court in a way which would enable the court to review it, if no motion for new trial had been made. Having reached the conclusion that there was such a decision, and that it is here for review, the next question is, whether it was material. This depends upon whether, assuming it to have been erroneous, it was hurtful, or might have been hurtful to the plaintiff in error. It was made at an early stage, when the first juror was called and put upon his voire dire. The court was not obliged to make it then, but the court did make it then, and the natural effect of it was to induce the prisoners to be more economical of their challenges than they otherwise would have been. Whoever, as counsel, has assisted in the selection of a jury in a case of felony, can bear witness to the constant reference which the mind makes to the stock of challenges at command. When the stock is low, juror after juror is • sometimes accepted, though far from being satisfactory, for fear of reaching empty-handed, lower down on the list, a group of names much more objectionable. To expend a challenge on one man' whom yon would like to reject, would perhaps leave none to be expended on another whom you must reject. Sometimes challenges become very precious. Life or liberty may depend upon them. For the court to rule in the outset that there can be, in the aggregate, but half as many challenges as the law allows, is hurtful in tendency, no matter how few challenges 'may afterwards be made, and no matter whether all that are made be allowed or not.

Finally, w.as the decision erroneous ? The prisoners were indicted for robbery. “Robbery by open force or violence, shall be punished by imprisonment and labor in the penitentiary for any time not less than four years, nor longer than twenty years. Robbery by intimidation, or without using force and violence, shall be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than five years.” Code, sections 4390,4391. “Everyperson indicted for a crime or offense which may subject him or her, on conviction, to death, or to four years’ imprisonment or longer in the penitentiary, may peremptorily challenge twenty of the jurors empaneled to try him or her.” Code, section 4643. “And if twenty men were indicted for the same offense, though by one indictment, yet every prisoner should be allowed his peremptory challenges of thirty-five, persons. . . . And if there were but one venire facias awarded to try them, the persons challenged by any one should be withdrawn against them all.” 2 Hale’s Pleas of the Crown, 268; Bacon’s Abr., Juries, E. 9. “ When the right of challenging exists, though several defendants are tried by the same inquest, each individual has a right to the full number of his challenges; but if they refuse to join in their challenges, they must be tried-separately, in order to prevent the delay which might arise from the whole panel being exhausted.” 1 Chit. Cr. Law, 535. “Where the-trial is joint, the right of peremptory challenges is in no degree narrowed or affected. Each prisoner has -a right, in such case, to chailenge the full number, and is unaffected, in this respect, by what the other prisoners do. If, therefore, in a capital offense, where twenty peremptory challenges are allowable by law, there is a joint indictment and joint trial of several persons, each may challenge the whole number to which he is entitled; and if there be two on trial, the challenges may extend to forty; if three, to sixty, etc.” Story, J. 4 Mason, 159. “Upon a joint trial, each prisoner may challenge, his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on the trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers to which they are respectively entitled. This is the rule clearly laid by Lord Coke, Lord Hale and Sergeant Hawkins, and, indeed, by all the elementary writers.” 12 Wheaton, 481. “Where there is a joint trial under a joint indictment, each defendant may challenge the whole number of jurors to which he would be entitled if tried separately.” 26 Ala., 107. See 15 Ill., 536. “ It has from the earliest times been held, both in England and the United States, that, where the right of peremptory challenge exists, each of the several defendants may challenge his full numbef, while, at the same time, he has the benefit of the challenges made by his co-defendants.” 1 Bishop Or. Proc., §967.

When two persons are tried together, for an offense that requires their joint action or concurrence, such as an affray, the acquittal of either will operate as an acquittal of both ; hence, in such a case, it has been held, in effect, that they may be required to join in their challenges. 13 Ga., 324. But even this exception to the general rule is denied elsewhere. 6 Ohio, 86. There is, however, so far as we know, no conflict of authority as to the rule itself. In criminal trials, th & personnel of the tribunal is important, and any .substantial right in respect thereto should be sacredly guarded. When the prisoners, though jointly indicted and tried, can be severally convicted or acquitted, the composition of the jury is of precisely the same practical concern to each of them, as if each was being tried severally. In the present ease, one was convicted and the other acquitted. They went to trial under a declaration by the state, through its public law, that every person in their situation might challenge, peremptorily, twenty jurors. A government, in moving against offenders, must abide faithfully by its own laws. Any government that fails to do so, may inspire ■ fear, but can never command respect. If the state is not prepared to allow each prisoner his statutory number of challenges, and the prisoners do not stipulate to join in their challenges, that is good cause for ordering a severance. Plowden, 100; 3 Salk., 81; 4 Mason, 165, 166; 12 Wheaton, 481, 484; 1 Bish. Cr. Proc., §§968, 969, 970; 1 Chit. Cr. Law, 535. Good cause existing for trying severally, the court may order a severance, though the prisoners may desire to be tried jointly. Stewart vs. The State, 58 Ga., 577. While it may also be the right of the prisoners to sever (compare 34 Ga., 10, with 37 Ib., 80), there can be no doubt of their right to forbear to sever on their own motion. By exercising the latter right, why should they lose any of their challenges ? The state may force on them a separate trial, unless they will consent expressly to join in their challenges. Why, then, should they be forced to yield a part of their challenges because they are willing, to be tried jointly, and refuse to demand separate trials ? If the state did not wish to offer them the advantages of joint trial," why were they indicted jointly ? Why should the -election be put upon them, when the state can elect for itself? The state has two- opportunities for electing: first, when it prefers the indictment, and again at the trial; they, less privileged, have but one opportunity. When they go to trial in the manner in which the state has indicted them, have they not reason to com elude that she is ready to try them in that manner, and grant them all their legal rights ? It is certainly possible for the state to try two persons jointly, and afford to each his full complement of challenges. The power of the court to order in successive panels is unlimited. Code, section 3935. And the sheriff may cause the constables to summon any number of qualified persons to be in attendance, in advance, so that tales jurors may be obtained with convenience. 27 Ga., 648. As to keeping accounts between each prisoner and the state while the challenging is in progress, there is no practical difficulty. A challenge would be charged to that one of the prisoners by whom it was made, and the state, on making a challenge upon its part, would simply charge itself with the same, in respect to one or the other of the prisoners at its option. Thus it would be known when each prisoner had exhausted his legal number, and when the state had exhausted hers as to each of the prisoners respectively. True it is that one prisoner might wish to accept and the other might wish to reject a particular juror ; but challenge is rejection (12 Wheat, 482), and the effect of rejection is not to block the trial, but to try with a jury satisfactory to both defendants, with no other exception than that which might result, in any instance, from the exhaustion of challenges before a full jury was obtained. The risk of such a contingency would attend all trials alike. But were it impossible to afford a joint trial, on the terms of allowing to each prisoner his full measure of challenges,. the consequence would be, not that he should lose any of his challenges, but that he should be tried in some way in which all his- challenges could be duly allowed. There is, in our own state, a recent instance of a joint trial in which the presiding judge held that the peremptory challenges on the part of the prisoners might extendió one hundred. 37 Ga., 82. In T. U. P. Charlton, 16, the objection as to the number of challenges was taken in arrest of judgment. Clearly,'it was not good for that pujóse, and, therefore, what the court said upon the general subject was mere obiter. Besides, the judgment in that case was, in fact, arrested upon another ground. It would be strange if, on putting a man to the bar to plead, with a statutory declaration that he should have twenty peremptory challenges, it would be necessary for ’ him to claim them expressly, on páin of being held to have waived a part of them. A prisoner may repose silently and securely upon every substantial right which any statute of the' state gives him.

3. The two verdicts were virtually but one. They were returned at the same time. In point • of form, the whole finding should have been embraced in one statement of it, but dividing it, as was done, did not vitiate.

4. We need not decide with whom would have been the right of concluding the argument if the plaintiff in error had not introduced any witness, nor joined in the examination of any witness introduced by the other defendant. It appears that he propounded questions to one or-more witnesses of the latter class. By so doing, lie' made them his own. He introduced evidence. It is a misnomer to call such an examination a cross-examination.

Judgment reversed.

Warner, Chief Justice, concurred, but furnished no written opinion.