Зображення сторінки
PDF
ePub

the defendant has a right to challenge jurors, which can not be defeated by legislative enactment, though the legislature may prescribe the time and manner of making objections.61

There are challenges to the array, and challenges to the polls, and of each of these there are principal challenges and challenges to the favor.

Challenges to the array are challenges to the panel as a whole, and if sustained the entire panel is quashed and a new one summoned.62 Challenges to the polls are objections to individual jurors.

Where a juror is not free from certain conditions which might cause him to have a bias against the defendant or in his favor, he is subject to challenge. Among the grounds of challenge are near relationship;63 other civil and social relationships, such as a witness summoned by the prisoner, or one in his employment,65 or one with whom he has a pending lawsuit ;6 66 a general bias for or against a party, which is ground for challenge to the favor, not for principal challenge;67 a pecuniary interest in the result of the trial;68 formed or expressed opinion as to the prisoner's guilt, although an inclination from mere rumor to believe the prisoner guilty of the facts heard about him are true, does not usually disqualify;70 a previous passing upon the question in some capacity, such as being a member of the grand jury

61 Palmore v. State, 29 Ark. 248; Black Const. Law (2 ed.) 572. 62 Co. Litt. 156, 158; 3 B1. Comm. 359.

63 State v. Andrews, 29 Conn. 100, 76 Am. Dec. 593; O'Neal v. State, 47 Ga. 229; 1 Chitty Crim. L. 541.

64 Commonwealth v. Jolliffe, 7 Watts (Pa.) 585.

65 Block v. State, 100 Ind. 357. 66 Co. Litt. 157.

671 Chitty Crim. L. 544; Co. Litt. 157b.

[blocks in formation]

which found the indictment;71 a biased view of the law, as where one is opposed to capital punishment;72 active connection with the prosecution or defense;73 lack of freehold qualifications in some states;74 non-residence in the county in some states;75 alienage;76 infamy;77 want of mental capacity.78 Certain persons by statute are exempted from jury service in most states, but if they consent to serve, and are otherwise qualified, they can not be challenged for cause.79 Among the grounds for principal challenge to the array are irregularities in summoning the jurors,80 relationship of the officer who summoned them to one of the parties,81 or the fact that one or more jurors were summoned at the instance of the prosecutor or defendant.82 The chief ground for challenges to the array for favor is bias on the part of the officer who summoned the jury.83

Challenges are also divided into challenges for cause, which must state specifically the ground of objection, and peremptory challenges. All challenges to the array must be for

71 Rice v. State, 16 Ind. 298; Stewart v. State, 15 Ohio St. 155.

72 Stephenson v. State, 110 Ind. 358, 11 N. E. 360, 59 Am. Rep. 216; State v. Wooley, 215 Mo. 620, 115 S. W. 417; Hyde v. State, 16 Tex. 445, 67 Am. Dec. 630.

73 Boyle v. People, 4 Colo. 176, 34 Am. Rep. 76; Johnson v. Hazlehurst, 8 Ga. App. 841, 70 S. E. 258; Pierson v. State, 11 Ind. 341.

74 Nelson v. State, 57 Miss. 286, 34 Am. Rep. 444; Dowdy v. Commonwealth, 9 Grat. (Va.) 727, 60 Am. Dec. 314.

75 Nordan v. State, 143 Ala. 13, 39 So. 406; People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.

76 Queenan v. Oklahoma, 190 U. S. 548, 47 L. ed. 1175; Queenan v.

Oklahoma, 11 Okla. 261, 71 Pac. 218, 61 L. R A. 324.

77 Queenan V. Oklahoma, 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324; 2 Hawk. P. C. ch. 43, § 25.

78 Thomas v. State, 27 Ga. 287; State v. Casey, 44 La. Ann. 969, 11 So. 583; State v. Eloi, 34 La. Ann. 1195; State v. Scott, 1 Hawk (N. Car.) 24.

79 State v. Noland, 36 S. Car. 515, 15 S. E. 599, 2 Hawk. P. C. ch. 43, § 26.

80 Reid v. State, 50 Ga. 556; Morgan v. State, 31 Ind. 193.

81 Vanauken v. Beemer, 4 N. J. L. 364; Baylis v. Lucas, 1 Cowp. 112. 82 Co. Litt. 156.

83 People v. Coyodo, 40 Cal. 586; Co. Litt. 156.

cause. Peremptory challenges are those to which the party objecting is entitled as a matter of right, without showing any cause or ground. The number allowed is regulated by statute.84 The time for making a challenge and the mode of making it, and also of trying objections to a juror, are regulated by statute.

Generally, no objection can be taken to a juror or to the panel, after acceptance and swearing, because of any fact then known to a party and not properly brought to the court's notice; or even because of such fact, unless the objection was thereby prejudiced.85 An objection unknown at the time of the paneling should be taken as soon after its discovery as practicable.86

§ 972. Swearing the jury.-At common law, every juror must be sworn and this must appear of record. 87 Statutes usually permit a juror to affirm who is conscientiously opposed to taking an oath.

§ 973. Opening statement.—After the jury is sworn, the prosecuting attorney makes a statement of the case to the jury, stating briefly the facts which he expects to prove, the evidence by which he expects to prove them and the accusation and law governing the offense. 88 The statement should be such as to show to the jury in what way the evidence will support the accusation. The evidence for the prosecution is introduced after the opening statement, and then the defense makes a statement as to the nature of the defense to the charge, and introduces his evidence.

84 See statutes of various states. See also 1 Bish. New Crim. Proc. §§ 935-945.

85 State v. Powers, 10 Ore. 145, 45 Am. Rep. 138; Yanez v. State, 6 Tex. App. 429, 32 Am. Rep. 591. 86 Lampkin v. State, 87 Ga. 516, 13 S. E. 523.

87 Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491; Rex v. Morris, 2 Strange, 901.

88 People v. Lewis, 124 Cal. 551, 57 Pac. 470, 45 L. R. A. 753; Morales v. State, 1 Tex. App. 494. 28 Am. Rep. 419; 1 Bish. New Crim. Proc., §§ 967-971.

§ 974. Functions of the court and jury.-In some of our states the court, in criminal cases, is the judge of the law, and the jury is judge of the facts. In such states the jury must follow the court's instructions, and a conviction contrary to such instructions will be set aside.89 However, an acquittal in disregard of such instructions does not entitle the state to a new trial. In other states the jury, in criminal cases, is the judge both of the law and the facts; but in such states it is the duty of the judge to instruct the jury as to the law.00 And here the jury has only the power, not the right, to disregard such instructions; so that if the accused is convicted on incompetent evidence, or the jury refuses to consider competent evidence, the conviction will be set aside.91 It is also the court's function to pass on the competency of witnesses,92 the admissibility of testimony and the sufficiency of the evidence to make a prima facie case.93 The jury passes upon the weight and effect of the evidence, and upon the credibility of witnesses.94

§ 975. Examination of witnesses.-The next step in the trial after the opening statement by the prosecuting attorney is the examination of witnesses. The prosecuting attorney announces the name of his first witness, and he is called to the stand by the clerk of the court and sworn. The prosecution then examines him in chief, and turns him over to the defendant for cross-examination. At the close of the cross-examination the prosecutor may re-examine the witness if desired. Both examination and cross-exami

89 Sparf v. United States, 156 U. S. 51, 39 L. ed. 343.

90 Sparf v. United States, 156 U. S. 51, 39 L. ed. 343 (dissenting opinion); 4 Bl. Comm. 361; Co. Litt. 228.

91 Commonwealth v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec.

92 State v. McDonnell, 32 Vt. 491.

93 Commonwealth v. Packard, 5 Gray (Mass.) 101.

94 People v. O'Brien, 96 Cal. 171, 31 Pac. 45; Lefler v. State, 122 Ind. 206, 23 N. E. 154.

nation must relate only to facts relevant to the issues and cross-examinations must be confined to the facts, to which the witness testified in his examination in chief.95 Re-examination must be confined to the explanation of statements made in cross-examination.96 Any witness may be recalled for further examination in chief or cross-examination and in such case the opposing party has the right of further cross-examination or further re-examination as the case may be.97 The general rules as to the examination and impeachment are the same in criminal as in civil cases. Leading questions should not be asked, in examination in chief or re-examination, unless the witness appears hostile to the party introducing, or where they are necessary to bring items, dates, or details to memory; but upon cross-examination leading questions may usually be asked.98 Also in crossexamination the witness may be asked questions which tend to test accuracy or credibility or to affect his credit by showing his bad character.99 Statements of the witness relative to the subject-matter of the action and inconsistent with his present testimony may be proved.1 A witness also may be impeached by showing that his general reputation for truth and veracity is bad. One may not impeach his own witness unless adverse, but may introduce witnesses who will testify to the contrary. After all of the witnesses for the prosecution have been examined in the same manner as the first, and the last one has completed his testimony, the state rests its case. The witnesses for the defense are then similarly examined.

3

95 State v. Smith, 49 Conn. 376; People v. Beach, 87 N. Y. 508. 96 Schaser v. State, 36 Wis. 429. 97 Commonwealth V. McGorty,

114 Mass. 299.

98 People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122.

29 Commonwealth v. Mason, 105 Mass. 163, 7 Am. Rep. 507; Peo

ple v. Irving, 95 N. Y. 541, 2 N. Y. Cr. 171.

1 People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Steph. Digest Ev. (Chase's ed.) 227.

2 Laclede Bank v. Keeler, 109 Ill. 385; Lenox v. Fuller, 39 Mich. 268.

3 State v. Knight, 43 Maine 11.

« НазадПродовжити »