
    Jones v. The People.
    1. Upon his voir dire a juror, on an indictment for murder, stated his unwillingness to join in a verdict that would subject the convicted to the death penalty, and on cross-examination that he “ would not render such a verdict” even if the evidence in the case and the law as it should be given him should warrant such a verdict as would result in the death of the prisoner, because of conscientious scruples. Held good ground for challenge on the part of the prosecution.
    2. The proper test is (where a juror states that he has heard something 'about the case and has “partially” formed an opinion), can and will he render a verdict according to the evidence heard upon the trial, impartially and fairly, under his oath, regardless of his preconceived opinions; and if upon his voir dire he declares he can and will so decide, there is no ground for sustaining a challenge on the ground of such previously formed opinion.
    3. Under the statute (General Laws, 872) a juror is not disqualified by-reason of a previously expressed opinion, if the court shall be satisfied upon examination that he will render an impartial verdict.
    4. Testimony as to the character of the deceased showing him to have been of a quarrelsome and violent disposition, when admitted, is for the purpose of showing a ground for belief in the mind of the slayer that an attempt made upon him was dangerous and felonious. Hence, as a proper ground for the introduction of such testimony, an attack must first be shown, the nature of which, together with the known violent and dangerous character of the assailing party, is sufficient ground for belief in the mind of the defendant at the time that the attack is felonious.
    5. Where a great number of instructions are given, the most of them dependent to some extent on each other, where they are full and fair to the defendant, and stating the law correctly, this court will not review them, or any part of them, upon a vague and general charge of error.
    O. Where all the evidence fairly supports the verdict it will not be disturbed.
    7. If the justness, soundness or fairness of a verdict has been impaired or in any way vitiated by the use of liquors by the- jury, such verdict should he set aside. But if no such consequences be shown or are fairly inferable, the verdict should not be disturbed. In such case the real question is, has the party to be affected by the verdict been prejudiced by the conduct or misconduct of the jury ?
    8. Where a jury were allowed by permission of the court, after being impaneled, to attend a theatrical exhibition, in charge of a sworn officer, when they did not separate or communicate with any one outside their own body, and it not appearing that the jury were thereby affected in the full and impartial discharge of their duties in trying the case and rendering a just, and true verdict, held no sufficient cause for setting the verdict aside.
    
      Error to District Court of Clear Creeh County.
    
    The facts are sufficiently stated in the opinion.
    Messrs. Bela M. Hughes and Gf. G. White and Messrs. Morrison and Fillius, for plaintiff in error.
    Charles H. Toll, Attorney General, for defendants in error.
   Stone, J.

Plaintiff in error was indicted and tried for murder.

The verdict of guilty being without the clause involving the death penalty, the sentence imposed was imprisonment for life. The entire bill of exceptions is printed, setting out all the testimony and proceedings in the case, and we have carefully read and examined the whole two hundred pages of printed record with a view of doing justice as well to the prisoner as to his counsel, who have exhibited commendable pains in presenting the case for review in this court.

The errors assigned are stated as follows:

1. The court erred in sustaining challenge to James Powell as juror.

2. The court erred in overruling challenge to Hans Iverson as juror.

3. The court erred in excluding the offer to prove character of deceased.

4. The court erred in refusing defendant’s instructions, numbered 7, 8 and 11, upon the question of degree.

5. The court erred in refusing defendant’s instructions, numbered 9 and 10, upon the question of intent.

6. The court erred in giving its instructions, numbered 6 and 7, upon the.question of intent.

7. The court erred in giving its instruction numbered 14.

8. The court erred in giving its instruction numbered 15.

9. The court erred in its entire charge taken as a whole.

10. The court erred in refusing to grant a new trial.

11. The evidence does not justify any verdict higher than manslaughter.

12. The misconduct of the jury in the use of intoxicating liquors vitiated the trial and verdict.

13. The misconduct of the jury in visiting the theater vitiated the trial and verdict.

14. The court in its charge confounds the distinctions between manslaughter and murder with the distinctions relative to punishment which the jury were at liberty to make.

1. The challenge by the prosecuting attorney of the juror Powell was on the ground of his expressed conscientious scruples against the infliction of the death penalty. Upon his voir dire examination, the juror stated .distinctly his unwillingness and inability to join in a verdict that would subject the convicted to the death penalty. Upon cross-examination he was asked this question: “ Did you say that if the evidence in this case, and the law as it should be given to you by the court, should warrant you in rendering a verdict which would result in the death of the prisoner, that your conscientious scruples are such that you could not render such a verdict ?” To which question the juror answered: “I would not render such a verdict.” This was, in effect, declaring that he would not assent to á verdict in accordance with the law of the land and his oath as a juror, where the law entailed a penalty which his individual conscience did not approve. It is needless to say that the law could not be fully administered with such a juror sitting in the case, and there was no error in sustaining the challenge.

2. The juror Hans Iverson stated that he had heard something about the case and had “partially” formed an opinion about it; that he did not know but what he had some bias in the case. Upon further examination, he ■stated that he knew of no reason why he could not render a fair and impartial verdict according to the law and evidence submitted, without any prejudice or bias, regardless of what he had previously heard. In answer to the question by counsel for defendant, “ Would the opinion you have formed as to the guilt or innocence of the prisoner require evidence to remove it?” the juror answered, “Yes, sir;” whereupon he was challenged for cause by defendant. In answer to further questions by the court, the juror stated that he had no settled opinion; that he did not hear about the case at Silver Plume, where the homicide occurred, but at Idaho Springs; that the persons he got his information from learned it from reports; that he did not inquire into the matter, and that he could lay aside the opinion he might have formed about the case, and as his duty to his oath, could try the case the same as if he had never heard of it. The question whether a juror has such an opinion as that it would require evidence to remove it, is one quite commonly propounded by attorneys, but is no certain or proper test of such juror’s qualification. I suppose that no rational person ever has an opinion upon any subject which is changed or removed except by evidence of some kind. I do not refer to sworn testimony alone, heard upon a trial, for the question is not thus limited, and is misleading to the ordinary juror thus questioned.

The time has gone by, if it ever existed, when a juror is held to be disqualified merely because he has heard or read something about the case he is called to try and is intelligent enough to have formed an opinion therefrom. The proper test in such case is, can and will the juror render a verdict according to the evidence heard upon the trial, impartially and fairly, under his oath so to do, regardless of his preconceived opinions; and if the juror declares upon his voir dire oath that he can and will so decide, there is no cause for sustaining a challenge on the. ground of such previously formed opinion.

The juror in question had no fixed opinion; he had heard mere rumors at a distance from the place where the homicide occurred; he did not inquire into the matter, and he declared, as well he might, his willingness and ability to decide freely and fairly, uninfluenced by what he had previously heard, read or believed, respecting the guilt or innocence of the prisoner.

We have a statute upon this subject under which a juror is not disqualified, by reason of a previously formed or expressed opinion, if the court shall be satisfied upon examination that he will render an impartial verdict (General Laws, 872); and for a full discussion of this whole question by Chief Justice Hallett, see the case of Solander v. The People, 2 Col. 48.

There was, therefore, no error in overruling the challenge.

3. The third assignment questions the ruling of the court in refusing the offer of the defense to show that the deceased was of a quarrelsome and violent disposition when under the influence of liquor, in which condition he was shown to be at the time of the killing. We think the offer was properly refused. No foundation had been laid for the introduction of such testimony. The testimony shows that up to the day of the killing there had been no quarrel between the prisoner and tin deceased; their relations and intercourse had always been friendly; they had roomed together, and there was no evidence that the prisoner, at the time of the killing, had anything to fear from the known disposition or character of the deceased, or from any previous threats, conduct or circumstance whatever. A few minutes previous to the killing the deceased was looking for a pair of boots in the house, and not finding them, stepped to the door and asked the prisoner about them; the search was renewed; the prisoner, who was unloading sacks of ore from the backs of donkeys at the door, entered the house to help look for the boots; the deceased found them just after the prisoner entered, and then said to prisoner, ‘ ‘ I take back what I said about the boots.” Prisoner resumed his work outside, and deceased, who was then packing a valise just inside the open door, made some remarks about the boots in talking with a little child beside him; prisoner overhearing the remarks, said, What are you saying about the boots?” The deceased replied, “I am talking to Edith” (the child). The prisoner then said, “If you want anything off of me just come out here.” The deceased thereupon rose up and walked rapidly out of the door towards the prisoner, who was then about a dozen feet distant, when, without another word uttered by either, the prisoner gave deceased a push or thrust with his hand, in which he held an open jack-knife which he was using in cutting the pack ropes, and the deceased fell backwards into the doorway and died without speaking a word. The prisoner in his own testimony to the jury states that the •deceased first struck him on the neck with his fist; a statement to the same effect is made by the witness Clair on behalf of the defendant, but the testimony of this witness is, we think, fairly impeached by a number of witnesses introduced for that purpose.

Upon these facts it will be seen that the testimony as to the character of the deceased was clearly inadmissible at the time it was offered, which was previous to the testitimony of Clair and the defendant. Such testimony, when admitted, is for the purpose of showing a ground for belief in the mind of the slayer that an attack made upon him was dangerous and felonious. Hence, as a proper ground for the introduction of such testimony, an attack must first be shown, the nature of which, .together with the known violent and dangerous character of the attacking party, is sufficient ground for belief in the mind of the •defendant at the time that the attack is felonious. Davidson v. The People, 4 Col. 145.

Mr. Wharton lays it down, that if the offer of such tes-, timony is general, and not connected with the status of the defendant at the time, the testimony must necessarily be excluded, for B.’s savage disposition is no reason for A.’s killing him. “When, however, it is clearly shown that the defendant was under a reasonable fear of his life from the deceased, then the deceased’s temper, in connection with previous threats, etc., is sufficiently a part of the res gestee to go in evidence as explanatory of the state of defense in which the defendant placed himself.” Wharton’s Or. L. § 641.

The prisoner in this case had voluntarily invited an attack, and the deceased in going out upon this invitation unarmed, as the testimony shows he was at the time, was not such an attack as to make the offered testimony as to character admissible under the rule.

4. The fourth, fifth, sixth, seventh, eighth and ninth assignments relate to instructions to the jury given and refused, and do not require notice in detail, but may be ■considered together, since the counsel for plaintiff in error fails to discuss any one specifically, or point out the particular errors relied upon.

The general fault which seems to be charged to the instructions is, that the court did not clearly instruct the jury respecting the degree of the homicide; first between the degree involving the death penalty and that punish • able by imprisonment for life; and second as to the distinction between murder and manslaughter.

As to the first point, since the verdict of the jury did not involve the death penalty, we cannot perceive any ground of complaint in the instructions relating to the degrees of murder.

There were thirty separate instructions given by the court to the jury, and, with such a number, we cannot set out and review them, or any part of them, under a vague and general charge of'error, dependent, as the most of them are, to some extent, upon each other. It is sufficient to say that the instructions are full, and fair to the defendant, and that, while stating the law correctly, some of them go to the extreme limit of the rule in favor of the defendant. Under the instructions given, the jury might have found a verdict of manslaughter ■only, if they had believed the evidence failed to show malice in the homicide, or if they had entertained a reasonable doubt upon this point.

The eleventh assignment goes to the sufficiency of the evidence to warrant a higher verdict than manslaughter. This was a question of fact for the jury, and a careful examination of all the evidence in the case, as set out in the record, leads us to the conclusion that the evidence fairly supports the verdict.

5. The twelfth instruction is based on the misconduct of the jury in the use of intoxicating liquors.

Upon the filing of affidavits upon this point in the court below, a thorough investigation was ordered and had by the court, and the testimony of jurors and others heard upon the whole matter. Prom this testimony it appears that during the progress of the trial the jury, or some of them, at their own expense, procured and had sent to their room about two quarts of whisky, of which several of the jurors drank, but no considerable quantity was drank by any one. That several of them were accustomed to taking a dram every morning, and that it was procured on this occasion without any thought of harm or legal consequences arising from its use. The testimony of the jurors examined, as well as that of the-bailiff in charge, was that no one was intoxicated in the least, but that, on the contrary, every juror on the panel was perfectly sober at all times during the trial, and that neither their deliberations nor verdict were influenced or affected in the least by the use of the liquor that was partaken of.

Whether the use of intoxicating liquor by any one or more of a jury is sufficient cause for setting aside a verdict rendered by such jury has given rise to a contrariety of opinion by the courts. This difference seems to depend much upon differences of time in judicial history,, and somewhat upon differences in local prevailing sentiment. Under the English common law in early times, juries were treated with a rigor which" is unknown in modern practice, and would not be tolerated if attempted. “ Jurors were confined in rooms like prisoners, there to be kept without meat, drink, fire, or candle, unless by permission of the judge, until they were all unanimously agreed.” Blackstone Com. Book III, 375. And if the jurors did not agree before the judges were ready to leave the town and go to another, the jurors were not discharged, but were “ carried around the circuit, from town to town, in a cart.” Id. The time when the discomfort,, if not torture, of jurors was considered essential to securing just and speedy verdicts, has long gone by. As to. the use of liquors, the English authorities seem to hold that if the drink is not at the expense of the prevailing. party litigant in the case, the verdict is not necessarily vitiated. The early cases in New York, and particularly the case of Douglas v. The People, 4 Cow. 36, laid down the doctrine that the use 'of intoxicating liquors to any extent vitiated the verdict.

This case was followed by the early courts of several other states, including Arkansas and Texas, but the doctrine of these cases was overruled by the supreme court of New York in the case of Wilson v. Abrahams, 1 Hill, 207. The cases which now hold most strongly to the doctrine laid down in Douglas v. The People, supra, are the Iowa cases. In the case of The State v. Baldy, 17 Iowa, 39, the court set aside the verdict on the sole ground that after the jury had retired in charge of the bailiff, one of the jurors, who Was permitted to separate from the others for a necessary purpose, went into a grocery store for some tobacco, and while in there drank “ a glass of lager beer or ale,” and immediately returned to the jury room. There was no evidence that the juror was in any way affected by this one glass of beer any more than by the tobacco, which at the same time he was permitted to get and use, but the court, per Cole, J., in the opinion denominates it “spirituous drink,” and declares that its use, “in any degree,” is in itself “conclusive evidence” that the party on trial “has been prejudiced.”

This decision is based chiefly on that of Douglas v. The People, and is followed by the case of Ryan v. Harrow, 27 Iowa, 494, notwithstanding that in the latter case it is admitted that Wilson v. Abrahams overruled all the former New York decisions to the contrary, including that of Douglas v. The People. The doctrine of these Iowa cases is opposed not only to the great weight of authority, as will be seen by the authorities hereafter cited, but, as we think, opposed to sound reasoning.

It must be borne in mind that the question we are to deal with has nothing to do with the moral or social questions involved in the use of intoxicating liquors. If a verdict is to be set aside for misconduct of the jury, it must be for legal reasons alone. If by such misconduct a party litigant, or, in a criminal case, a party on trial, has been prejudiced, the verdict should be set aside, for the law requires a fair and impartial verdict. If the justness, soundness or fairness of the verdict has been impaired, or in any way vitiated, by the use of liquors by the jury, such verdict should be set aside. But if no-such consequences be shown, or are fairly inferable, if no juror was intoxicated, or in any manner or degree affected in his deliberations or judgment, for what reason in such case is the verdict to be set aside ? How has the party on trial in such case been prejudiced or injured by the conduct or misconduct of the jury ? The real question in the case is, has the pai’ty to be affected by the verdict been prejudiced by the conduct or misconduct of the jury %

The general rule, as stated by Mr. Wharton in his work on Criminal Law, sec. 3111, is that “ The verdict will not be set aside on account of the misconduct or irregularity of a jury, even in a capital case, unless it be such as might affect their impartiality or disqualify them from the proper exercise of their functions.”

In the case at bar, it not only does not appear that the misconduct complained of disqualified any juror in the proper exercise of his functions in the least, or in any degree whatever impaired the correctness or justness of the verdict, but on the contrary, the testimony to the point clearly contradicts even a presumption against the verdict. But it is said, on the other hand, that the only safety lies in the rigid rule of setting aside the verdict in every case where intoxicating liquors'are used by the jury, regardless of whether the jury were affected by such use or not. We cannot assent to this proposition. Would such a rule prevent a repetition of like misconduct by future juries ? We say, no. And instead of safety there is manifest danger in the rule, for it would hold out an obvious temptation, and furnish an almost certain opportunity to secure a new trial in every case, by the surreptitious introduction of liquor into a jury room, and would, tend to lessen the certainty of conviction in every criminal case.

Such misconduct on the part of the jury certainly deserves condemnation and punishment, and the jurors who» procured' and drank the liquor in this case were severely censured, and likewise fined by the court; but this is a. matter entirely apart from the question of setting aside the verdict when its fairness is not impeached.

We cite the following authorities in support of the views we have expressed upon this question: State v. Cucuel, 31 N. J. 250; Wilson v. Abrahams, 1 Hill, 207; Commonwealth v. Roby, 12 Pick. 496; Gilmanton v. Ham,. 38 N. H. 108; Rowe v. The State, 11 Humph. 492; Parinton v. Humphreys, 6 Me. 379; State v. Upton, 20 Mo. 397; Thompson’s Case, 8 Gratt. 657; Davis v. The People, 19 Ill. 74; Roman v. The State, 41 Wis. 312; Westmoreland v. The State, 45 Ga. 282; Kee v. The State, 28 Ark. 165; Richardson v. Jones, 1 Nev. 405; United States v. Gibert, 2 Sumner (U. S. C. C.), 83; 3 Wharton’s Cr. L. sec. 3320.

6. The thirteenth assignment is predicated upon the-alleged misconduct of the jury in attending a theater. The facts upon this point, established by the testimony of the officer in charge of the jury upon this occasion, as-well as the testimony of a number of the jurors themselves, are that, on the evening of the day they were1 impaneled, the entire jury, in charge of a sworn officer of the court, attended a theatrical play at a hall or opera house in Georgetown, where the court was sitting; that they occupied seats specially engaged for them, in a body; that no one occupied these seats but the jurors and the officer in charge; that they did not separate, either while there or in going to and from the place, and held no conversation or communication with any one, except bétween themselves and the officer; that no other spectators at the theater mingled with them; that they were all the time while there, as well as going and coming, in charge of said officer, and that they so attended the theater by permission of the judge of the court trying the case. These facts were not contradicted in any particular. The record is silent as to the literary or moral character of the play, whether tragic, comic or sentimental, but we think it entitled to a presumption favorable, rather than unfavorable, to its quality. Since the jury were allowed this recreation by permission of the court, and were not separated or communicated with by any one outside their body and the officer in charge, we cannot say that it was misconduct, or conduct by which the prisoner was in any- way prejudiced, and the same rule which we have laid down in discussing the preceding assignment of error must be applied to this, to wit: that where it does not appear that the acts complained of have affected the jury in the full and impartial discharge of their duties in trying the case, and rendering a just and true verdict therein, there is no sufficient cause for holding the verdict thereby vitiated, or for such reason setting it aside. State v. Cucuel, supra.

We are not to be understood as approving the practice of an indulgence to juries, such as was granted here; on the contrary, such a relaxation, as a rule, is not to be countenanced; but in this particular instance there was doubtless sufficient reason to the court for the act, and, since it appears to have been harmless, we cannot hold that there was error in the refusal of the court to set aside the verdict on this ground.

The fourteenth assignment of error is sufficiently covered by what we have said in noticing the instructions of the court to the jury.

Perceiving no error in the record, the judgment will be affirmed.

Affirmed.

Mr. Chief Justice Beck, before whom, as then district judge, the case was tried in the court below, took no part in this decision.  