State v. Brooks

¶1(dissenting):

¶2The rule is so elementary as to be universally recognized: that it is the prerogative of the trial judge to examine and pass on the qualifications of jurors; and that this includes their credibility in answering questions as to their qualifications.1 In this instance the trial judge believed the two jurors referred to when they swore under oath that they could set aside other considerations and act as fair and impartial jurors. It seems to me that it is a diametric departure from the rule above stated for this court to now decide that those jurors swore falsely and that the trial court was stupid or at least foolish to believe them. I cannot agree with such reasoning. I prefer to follow what I regard as the correct presumptions to the contrary: that the jurors told the truth; that the trial court believed them and that the jurors were thus properly qualified.

¶3What has been said above concerning the prerogatives of the trial judge in judging the credibility of the jurors has analogous application to the prerogatives of the jury in judging the credibility of witnesses. It is not the proper function of this Court to invade that province by making a labored effort to pick out possible flaws or inconsistencies in some aspects of the evidence and to assume that because of some superi- or insight on our part we can better judge the credibility of the witnesses than could the jury who found the verdict, or the trial court who approved it by letting it stand.

¶4I think it neither necessary nor appropriate to indulge in any extenuation concerning other aspects of the evidence as to why the jury should or should not have believed the witnesses, nor why, upon the whole evidence, they believed beyond a reasonable doubt that the defendant was guilty.

¶5It is also important to observe that even if error was committed which a majority of this court deems to be prejudicial and that therefore the verdict should be nullified and the judgment reversed, the defendant is not entitled to go free, but is only entitled to a new trial. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773,15 L.Ed.2d 627; State v. Lawrence, 120 Utah 323, 234 P.2d 600; State v. Kessler, 15 Utah 142, 49 P. 293. Furthermore, the new trial should be solely and exclusively upon the evidence to be presented therein, with the trial court and the jury to exercise their respective prerogatives as stated above in regard to judging that evidence; and without any analysis of the evidence indicating a prejudgment of the case. That the court should honor the right of trial by jury by refraining from commenting on the evidence, see State v. Green, 78 Utah 580, 6 P.2d 177, and Federated Milk Pro. Assn. v. Statewide Plumb. & H. Co., 11 Utah 2d 295, 358 P.2d 348.