State v. White

¶1(after stating the facts as above).

¶2Before the jurors were sworn, defendant interposed a challenge to the panel, alleging, as ground of challenge, that there had been “a material departure from the forms prescribed in respect to the drawing and return of said jury.” The -court overruled the challenge, to which ruling the defendant duly excepted.

¶3It appears from the record that on May 28, 1910, the clerk, in pursuance of an order theretofore made by the court, drew the names of twenty-five persons from the jury box to serve as jurors during the June term of court, and issued a venire to the sheriff on May 31, 1910, which venire was made returnable on June 16, 1910. No return was made on the venire by the sheriff of Uintah County, nor by any one acting for him, and no jury cases were tried at the June, 1910, term of court. No further order was made by the court in reference to the venire or list of jurors so drawn, and the clerk thereafter returned the • slips containing the names of the jurors so drawn into the jury box. On August 24, 1910, the clerk, pursuant to an order of the court, again drew the names of twenty-five persons from said box to serve as jurors at the September term. Nineteen of these names were the same as had previously been drawn in May. This panel was exhausted before a jury was secured to try this case, and the court ordered a special venire. Thereupon twenty-eight additional names were drawn from the box. The defendant challenged the twenty-eight jurors comprising the special venire on the same grounds alleged in his challenge to the general panel. This challenge was also denied by the court. The contention made on behalf of defendant is that he was entitled to have a jury selected from “a list of names drawn at the term -of court at which he was tried, and from a list which contained no names that had been drawn out of the box prior *350thereto,” and that the method followed by the clerk in drawing the jurors comprising the panel challenged was a substantial departure from the procedure prescribed by Comp*. Laws 1907, sections 1310, 1311. Section 1310 provides, so far as material here, that “the clerk . . . shall draw from the jury box such number of names to serve as petit jurors . . . as the judge may verbally, by letter, or by telegram direct.” Section 1311, among other things, provides that “the clerk of the court shall issue a venire to the sheriff or his deputy directing him to summon the persons so drawn. The slins so drawn from the box shall be preserved, but shall not be returned to nor again placed therein until the balance of the slips therein shall have been drawn out; provided, that if,, during the year, all of the slips shall have been drawn from the box, they must be again placed therein, and the same procedure had as hereinbefore provided.” The record of the proceedings had with respect to the drawing of slips from the jury box before this case was called for trial is not as full and complete as it should be. It appears, however, from the fragmentary parts of these proceedings contained in the bill of exceptions that subsequent to the irregularity complained of the slips were all drawn from the box, and again placed therein before this case came on for trial. At the time the challenge to the panel was interposed, the court, in denying the challenge, remarked:

“There seems to have been a technical noncompliance with the law. When the jurors’ names are drawn out of the box, they properly ought to be held out of the box until the box is exhausted. In this case, in June, when I ordered the jury, I believe I wrote a letter to the clerk explaining at that time that, if there was no jury work to be done, he need not go to the expense of having them served and brought herev He found there was no jury work, and the names were then put back in the box. However, the box has been exhausted since then and before this trial was commenced, and I think the difference is not prejudicial to the defendant, as all the names had to go back in the box anyway.”

¶4*351Appellant has incorporated these remarks of the court in his printed abstract as representing the true state of the record ■as made in the lower court.

¶5Counsel for appellant, in the discussion of this feature of the case, in their printed brief, concede “that where jurors finally drawn are the same ones as would have been drawn, or are selected from the list that they would have been selected from if the law had been strictly complied 1 with, there is no error.” Such seems, in effect, to be the case before us. The slips containing the names of jurors in the box having all been drawn out in trials taking place at the September term — the term at which the defendant was tried and convicted — such slips were returned therein, and among them were the slips which had been drawn out in June preceding. It was therefore immaterial, so far as it affected the rights of defendant, whether the slips containing names drawn in June were returned to the box before the commencement of the trial had at the September term or were withheld therefrom until all the names then in .the box had been drawn out and then returned with the other slips to the box. While the act of the clerk in returning to the box the names of the jurors drawn for the preceding May term of court before all names had been drawn therefrom was irregular, yet it could not in any way have prejudiced the rights of the defendant. In fact, no claim is made that this irregularity prevented, or tended in the remotest degree to prevent, the defendant, from securing a fair and impartial jury composed of men competent and eligible to serve as jurors.

¶6Furthermore, the impaneling of a jury in this case exhausted' the panel of twenty-eight jurors challenged by the defendant, and, when he accepted the. jury, he had exercised but nine of the fifteen peremptory challenges allowed him by law, from which it may be fairly inferred that 2 the defendant considered the jurors comprising the trial panel fair and impartial, and that he was willing to submit the issues of fact in the case to them. In the case of Connor v. Salt Lake City, 28 Utah 259, 78 Pac. 481, this court, speaking through Mr. Justice Bartch, said:

*352“The parties to every case at law may demand a fair and impartial jury to be selected from the panel of jurors drawn for service in the court where the case is to he tried, hut whether' such jury he selected from the entire panel or only a portion: thereof is immaterial. If the jurors constituting the jury are competent, fair, and impartial, it is all that the law requires andi the litigants can demand.”

¶7Questions involving this same principle are discussed in the-following cases, wbiob uphold the rule here announced: State v. Hensley, 94 N. C. 1027; Niles v. Circuit Judge, 102 Mich. 328, 60 N. W. 771; State v. Tighe, 27 Mont. 327, 71 Pac. 3.

¶8The defendant attempted to justify the killing of Reynolds-upon the ground of self-defense, and the court charged the-jury somewhat elaborately upon the theory of self-defense. Two of the six separate and distinct paragraphs of the instructions given by the court on this question were excepted to by the defendant, and are assigned as error. The portions of the charge relating to self-defense excepted to are as follows:

“No. 13. The defendant admits the billing but claims-justification for his act upon the theory of self-defense, and this defense is a just and valid one, if sufficiently proved. However, the defendant having admitted the killing, and the-testimony not showing clearly that the crime is only manslaughter, if anything, the burden of proving said justification rests on the defendant.”

“No. 17. If it appears to your satisfaction as jurors that the defendant herein was assaulted by Reynolds without any wrong or cause on the part of the accused against the said deceased, and that at the time Reynolds appeared around the corner of Nichols’ Store with a gun in his hand, .and this defendant at that time honestly and truly believed that he was in imminent danger of his life or great bodily harm, he would be justified in taking the life of said deceased, Reynolds, unless you -find tlvai the deceased was trying to prevent the defendant from committing a felony

¶9We shall first consider the assignment of error directed at instruction No. 17. This instruction, except the italicized part, was given at the request of the defendant. His counsel in their printed brief contend “that the transaction be*353tween the defendant and Wilson was fully completed; 3 that Wilson had departed from the scene before the deceased, Reynolds, appeared upon the scene with the revolver. In other words, we believe the evidence discloses the fact to be that the felony, if it was a felony, committed by the defendant upon Wilson, had been completed at the time of the intervention of Reynolds.” Hence the giving of the italicized part of the instruction was error. Counsel do not expressly, but they do inferentially, claim that there is some evidence from which the jury might infer that Reynolds was the aggressor, and that, therefore, defendant was entitled to have his requested instruction given without modification. We have carefully examined the record, and we fail to find any evidence whatever upon which an instruction on the right of self-defense could properly be predicated. According to defendant’s own testimony, Reynolds was with him when he pulled his gun on Wilson, and he knew that Reynolds at the time was fully advised of what he was doing, namely, acting in the role of a highwayman and robber, and that he was committing a felony. The defendant in his testimony says:

“Just as soon as I called on Wilson, he was off kind of close to the wall, and Bob [the deceased] was a little to the right, and I was kind of behind him, and, as soon as Wilson stopped, he [Reynolds] went around a little way and turned around and seemed as if he saw the gun, and he turned right around me to the right, and went back into the store, I guess. He went around the corner.”

¶10When Reynolds returned with the revolver, the defendant had taken Wilson’s money, and was in the act of putting it in his pocket, but he still had the revolver in his hand, and was in the act of forcing Wilson to leave the place where he had just been compelled to deposit the money, and was prepared to shoot him in case he refused to go. In other words, defendant’s own evidence shows that what he did there in regard' to Wilson was one continuous transaction. Under the admitted facts in this case, it is wholly immaterial whether the robbery was or was not a completed and past-transaction when Reynolds returned to the scene with his gun. As we have *354pointed out, the evidence of the defendant shows that he had committed a felony, or was in the very act of committing, one, when the shooting in question took place. Comp. Laws 1907, section 4168', provides, so far as material here, that homicide is justifiable “when committed by any person in either of the following cases: (1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; . . . (5) when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.” It is only fair to counsel for defendant to say that they concede “that the deceased, Reynolds, would' have had a right to attempt by lawful ways and means to apprehend any person for a felony committed.” While counsel seem to inferentially claim that Reynolds failed to bring himself within the statute when he interfered with defendant upon the occasion in question, they have not pointed out, nor attempted to point out, wherein the “ways and means” adopted by him were in any sense unlawful. The uncontradicted evidence shows that, when he first observed the defendant in the act of committing a felony, he remonstrated, and said to him: “You don’t want to shoot Wilson. He is our best friend.” He then adopted the only effective means at his command. He went and armed himself, and returned to where the defendant was just completing his crime of robbing Wilson, and, even if it were conceded that he fired the first shot, he did not, under the circumstances, use any more force than he was warranted in doing. And there is not a fact or circumstance testified to by the defendant or any witness in the case that warranted the court in instructing'the jury at all upon the question of self-defense.

¶11It therefore necessarily follows that, while the instruction complained of might have been prejudicial to the interests of the state, it could not upon any logical theory 4 of the case have been prejudicial to the rights of the defendant because the court in submitting this question to the jury gave the defendant more than he was entitled to.

¶12*355The defendant assails instruction No. 13 on the ground that it is erroneous, and in conflict with the court’s instruction No. 6. Instruction No. 6 is in the language of Comp. Laws 1907, section 4856, which provides that “upon 5 a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, shall devolve upon him, unless the proof on the part of the prosecution tends to show that the crime committed amounts only to manslaughter, or that the defendant was justifiable or excusable.” If there were any facts in the case upon which an instruction on the theory of self-defense could properly be given, there would be much force to the contention that instruction No. 13 was erroneous, and that the giving of it was prejudicial error. But, as we have pointed out, there was no evidence introduced, either on the part of the state or the defendant, that in any way “tends to show that the Crime amounted only to manslaughter, or that the defendant was justifiable or excusable.” Therefore the giving of the instruction could not, upon any logical theory, have prejudiced the rights of the defendant. We thinli the instructions as a whole were more favorable to the defendant than the facts warranted.

¶13There are other errors assigned, but, viewing the case as we do, we do not deem, them of sufficient importance to justify further discussion.

¶14We find no reversible error in the record. The judgment is therefore affirmed.