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formation received from defendant and oth- the reporter or to the court, to be furnished ers. Upon cross-examination a witness may with a copy of the testimony taken by the be asked any question which tends to test reporter. The record seems to indicate that his accuracy or credibility or to impair his defendant's position was that he could not credit by compromising his character; but be put on trial at all, because the time had the extent to which examination shall be expired within which, under the statute, the allowed is in the discretion of the court, and reporter was to file a certified transcription that discretion should be exercised in view of his notes with the clerk. It is now conof the circumstances attending the trial, and tended by the appellant that he was tried the good or bad faith manifested by the without "due process of law." We think parties. 1 Thomp. Trials, $8 458, 461, 464; defendant's position unsound. He was dePeople v. Larsen (Utah) 37 Pac. 258. We prived of no right. The preliminary hearcannot say this discretionary power was ing is not connected with the trial; it is abused by the court in passing upon the unknown to the constitution; it is no part questions above referred to.
of the grand jury system, and has no re3. Defendant contends that the court err
lation to the indictment. No matter what ed in overruling his objection to going to irregularities may have existed at the extrial on the 10th of October, 1894, for the amination, even if def ant was there dereason that the evidence taken at the pre- nied an impartial hearing, it would in no liminary hearing had not been transcribed, manner affect this case, or determine the certified, and filed with the clerk of the trial upon indictment. Under our practice, district court, as provided by law. Section an examination prior to indictment is not 4883 of the Compiled Laws of Utah of 1888 indispensable. Indeed, many cases provides, in substance, that in cases of hom
taken directly before the grand jury. If icide the testimony of each witness must be appellant's position is correct, the trial of a reduced to writing, or the magistrate before person charged with homicide, where an whom the hearing is had may, in his discre-examination has been held before a magistion, order the testimony and proceedings trate, depends upon the reporter. If his to be taken down in shorthand, and for that notes are lost, stolen, or destroyed, or if purpose may appoint a reporter. “The through sickness, or for any other reason, transcript of the reporter, when written out
he is unable to transcribe and certify to in longhand writing and certified as being them within 10 days after the hearing, the the correct statement of the testimony and
defendant cannot be legally tried, as it proceedings in the case, shall be prima facie
would not be with “due process of law." a correct statement of such testimony and It was not the intention of the legislature proceedings. The reporter shall within ten
to postpone the trial of a person charged days after the close of such examination, if with homicide until he knew the testimony the defendant be held to answer the charge, against him. If so, the grand jury would transcribe in longhand writing his said short- have been required to divulge the evidence hand notes, and certify and file the same before them, or that body would have been with the clerk of the district court embra
forbidden to examine any case until a precing the county in which defendant was ex- liminary hearing had taken place, and the amined, and shall in all cases file his orig- evidence there produced furnished the acinal notes with said clerk. The reporter's
cused. It is not necessary to decide whethfees shall be paid out of the treasury of the
er the statute is directory merely, or mancounty." When the case was called for datory. If defendant had asked for a contrial, defendant's counsel "objected to going
tinuance in order to procure a copy of the to trial,” because the notes of the stenogra- testimony, or made any showing that he pher, taken at the preliminary examination was being deprived of any right or advanof the defendant, had not been transcribed, tage, or would in any manner be prejudiced certified, and filed with the clerk within in proceeding to trial, perhaps a different 10 days, or at all. The record shows that question might be presented than than here the stenographer who had reported the hear. raised by the defendant. ing had declined to transcribe his notes, be- 5. Appellant assigns as error the overrulcause in similar cases both the county and ing of his challenges for cause directed territory had refused to pay him, and upon against the jurors Harris, Faver, Burton, and suit against the former it had been held Smith. The juror Harris, being examined on that the county was not liable. It appears his voir dire, stated in substance that he had also that the attorney for the people had read an account of the homicide, at the time requested a transcript, but the reporter had it occurred, in one newspaper, but had never peremptorily declined to furnish it, and had heard or read anything concerning the case come into open court, and given his reasons since. He had forgotten what was written, for so doing. The defendant did not claim and the manner in which the deceased had that he was prejudiced in not having a come to her death. He had never talked transcript of the reporter's notes, nor did with any person concerning the case, nor did he ask for a continuance in order to secure he form or express an opinion. He had, a transcript of them; and the record shows however, heard persons, whose names he that he never made any request, either to had forgotten, express an opinion as to the guilt or innocence of the defendant. He had oral, but must be entered in the minutes of an impression as to defendant's guilt or in- the court or of the phonographic reporter." nocence from the account read. It was, how- The challenges interposed by defendant were ever, only a newspaper impression, although too general, and did not raise any question it would take evidence to remove it. The for review by this court. Defendant's mode Juror stated, however, that he could try the of challenge was, “Defendant challenges for case fairly and impartially, and give the de- cause.” This is insufficient. People v. Hopt, fendant the presumption of innocence. The 4 Utah, 249, 9 Pac. 407. If the jurors were juror Burton had read, in one newspaper challenged for implied bias, the grounds upon only, a partial account of the homicide, and which the challenge is placed must be stated. knew nothing except what he had read in Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; the incomplete statement. He had no opin- People v. Hopt, 4 Utah, 250, 9 Pac. 407; Peolon concerning the guilt or innocence of the ple v. Cotta, 49 Cal. 166. If the challenge is defendant,-"just an opinion as to the oc- for actual bias, the cause stated in the statcurrence.” In answer to the court, Mr. Bur- ute must be alleged. Hopt v. Utah, and Peoton stated that he could entirely disregard ple v. Hopt, supra. Moreover, defendant perwhat he had read, and any impression or opin- emptorily challenged the jurors Harris and ion that he had formed from it, and try the Burton, and, under all authorities, if there defendant on the evidence produced. C. S. had been error in overruling his challenges Faver; upon his examination, stated that he for cause, he could not now complain. But, had read newspaper accounts of the homi- waiving the question as to the form of chal cide, and that he had a strong impression lenges and the last point suggested, and conarising therefrom as to the guilt or innocence sidering the matter upon its merits, we are of the defendant, and the fact that the homi- of the opinion that the court properly overcide had been committed, but that his mind ruled defendant's challenges. It is clear the was entirely free from such an opinion or jurors were not disqualified for implied bias, conclusion; "that he could accord to the as they had neither formed nor expressed defendant the full presumption of innocence an unqualified opinion or belief as to the in entering upon the trial. He had, how- guilt or innocence of the defendant, so that, ever, an impression which would take some if they were disqualified, it was because of evidence to remove, but would enter the actual bias. Counsel insists that these jurors jury box (he hoped) unbiased." The statute were not impartial, and therefore incomof the territory allows challenges to jurors petent, and that the sixth amendment to the for implied and actual bias. The provisions federal constitution, which provides for “a relating to this subject are found in 2 Comp. speedy and public trial before an impartial Laws Utah 1888, pp. 704, 706, and are as jury," was violated. If the jurors were infollows: Section 241: "A particular cause of competent, it was because of having read in challenge is: (1) For such a bias as when the "public journals” an account of the homicide. existence of the facts is ascertained in the They had not gone to the extent of "forming judgment of law, disqualifies the juror, and and expressing an opinion apon the cause." which is known in this act as implied bias. Illinois has a statute substantially the same (2) For the existence of a state of mind on as section 244, supra. It was contended in the part of the juror which leads to a just the case of Spies v. People, 122 III. 261, 12 inference, in reference to the case that he N. E. 865, and 17 N. E. 898, that it was unwill not act with entire impartiality, which constitutional as being in contravention of is known in law as actual bias." For im- a provision of the state constitution providplied bias there are eight grounds of chal- ing for a speedy and impartial trial in crim. lenge. The only one necessary to be referred inal cases. The defendants claimed that a to in this case is that which provides for federal question was involved, and carried challenging the juror when he has formed the case to the supreme court of the United and expressed an unqualified opinion or be- States. Speaking of the constitutionality of liet t) at the prisoner is guilty or not guilty the act, that court say: "Without pursuing of the offense charged. Section 244 provides: this subject further, it is sufficient to say that “That in a challenge for implied bias, one or we entirely agree with the supreme court more of the causes stated in section 242 must of Illinois in its opinion in this case, that be alleged. In a challenge for actual bias, the statute on its face, as construed by the the cause stated in the second subdivision of trial court, is not repugnant to section 9 of section 241 must be alleged; but no person article 2 of the constitution of that state, shall be disqualified as a juror by reason of which guaranties to the accused party in ep. having formed or expressed an opinion upon ery criminal prosecution a speedy trial by the matter or cause to be submitted to such an impartial jury of the county or district in jury, founded upon public rumor, statement which the offense is alleged to have been in public journals, or common notoriety; pro- committed. As this is substantially the pro vided, it appear to the court, upon his decla- vision of the constitution of the United ration, under oath or otherwise, that he can States upon which the petitioners now rely, and will, notwithstanding such an opinion, it follows that, even if their position as to act impartially and fairly upon the matters the operation and effect of that constitution submitted to him. The challenge may be is correct, the statute is not open to the ob jection which is made against it.” Spies v. asked by defendant's counsel whether, if it Illinois, 123 U. S. 170, 8 Sup. Ct. 21. This would appear that defendant was engaged iv section of our statute (244) has been passed the saloon business, at the time and prior to upon by the supreme court of the United the homicide, it would have a tendency to States in the case of Hopt v. Utah, 120 U. S. prejudice or bias his mind against him, and 430, 7 Sup. Ct. 614. One of the jurors in that the reply was that he did not have "that recase was challenged for actual and implied spect for or regard for that class of men that bias. He testified on his voir dire that he I would have for men of other occupations, had heard of the case through the newspa- generally, as men of a class." He further pers, and read what was represented to be stated that, if the defendant went on the the evidence, and also had talked about it, stand as a witness, the fact might have some so that he had formed a qualified opinion; weight in his mind as to his credibility as a but he "could sit upon the jury, and deter- witness; that he knew nothing of the case or mine the case, without reference to anything about the defendant, and had no bias or prejthat he heard." The trial court held that he udice against him, and no opinion of his guilt was competent. The court say:
“By the or innocence, and would not allow the fact express terms of the statute (section 244) he that he thought less of a saloon keeper than could not be disqualified as a juror for an men of other occupations generally, to influopinion formed or expressed upon statements ence him in any way in passing upon his inin public journals, if it appear to the court, nocence or guilt, and that he could pass upon upon a declaration under oath or otherwise, that the same as he would upon any other perthat he could or would, notwithstanding such son. Under the statute, there can be no an opinion, act impartially and fairly upon question about the competency of the juror. the matters submitted to him. We think
It is not required that jurors close their eyes that the evidence, or what purports to be the to just observations and experiences in life. evidence, printed in a newspaper, is a state- It is their exclusive province to weigh the evment in a 'public journal,' within the mean- idence, and determine the credibility of the ing of the statute, and that the judgment of witnesses; and they cannot be required to the court, upon the competency of a juror in state in advance--as a prerequisite to compesuch cases is conclusive." Reynolds v. U. tency—that they will give the same credit to S., 98 U. S. 145; People v. Hopt, 4 Utah, one witness that they will give to another, or 250, 9 Pac. 407; Spies v. Illinois, 123 U. S. to one class of witnesses that they would to 131, 8 Sup. Ct. 21; People v. McGonegal (N. other classes. It has been intimated by the Y. App.) 32 N. E. 616; People v. Wah Lee supreme court of Indiana that in the trial of a Mon (Sup.) 13 N. Y. Supp. 767. But, conced- cause involving the business of the defendant, ing that the jurors mentioned possessed ac- who was a saloon keeper, a juror who stated tual bias, there is no question presented for that he was prejudiced against saloon keepreview in this court. An issue of fact was ers, and would not believe defendant as he raised, and the action of the trial court, no would persons of other occupations, was not exception having been taken to any ruling qualified; but the court limits the rule to admitting or rejecting evidence upon the voir cases concerning the occupation or business dire examination, is final and conclusive. 2
against which the juror is prejudiced. State Comp. Laws Utah 1888, § 5085; People v. v. Dolan, 23 N. E. 761. But in the case at Hopt, 4 Utah, 250, 9 Pac. 407; People v. Cot- bar defendant's business was not upon trial, ta, 49 Cal. 168; People v. Fong Ah Sing, 70 and was not involved in the case. One of the Cal. 8, 11 Pac. 323; People v. McGonegal, jurors in the case of Spies v. Illinois, supra, supra; Spies v. Illinois, 123 U. S. 131, 8 Sup. in his voir dire, answered that he had a deCt. 21; State v. Pike, 49 N. H. 399. The cided prejudice against Communists and Socases upon which counsel rely are not op- cialists. Defendants were not only Commuposed to the views herein expressed. They nists and Socialists, but Anarchists. It was present different questions, and most of them held that the court rightly overruled defendare decided upon statutes different from ours. ant's challenge to the competency of the juror, Perhaps, a few years ago, before newspapers and that its finding was conclusive. See were so numerous, impressions and opinions Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21; founded upon reports contained in public De Puy v. Quinn (Sup.) 16 N. Y. Supp. 710; journals would, in some jurisdictions, be Fortune v. Trainor (Sup.) 19 N. Y. Supp. 598; deemed sufficient to disqualify a person for People v. Carpenter, 102 N. Y. 238, 6 N. E. jury service.
584; Com. v. Poisson (Mass.) 32 N. E. 906; 6. It is further insisted that the court erred Stoots v. State (Ind. Sup.) 9 N. E. 380. in overruling defendant's challenge of Juror 7. Appellantassigns as errorthe action of the Smith. Counsel's challenge was for "bias and court in permitting witnesses to testify whose prejudice.” Were it not for the importance names were not indorsed upon the indictment, of the case, we would not notice a challenge and were not given in the list furnished by based upon a ground so general, and wholly " the district attorney prior to the commenceunknown to the statute. Moreover, after this ment of the trial. On the day the case was challenge was overruled, the juror was per- set for trial, defendant's counsel, in open emptorily challenged by the defendant. Dur- court, requested “as a favor, and not as a mating the examination of this juror he was ter of right,” that the people's attorney fur
nish him the names of all the witnesses to be spoke a peculiar and unusual dialect of the called during the trial, before its commence- German language, and it was difficult to ment. The district attorney replied that he procure a competent interpreter. One Fritz had no acquaintance with the case, but, as Lomax was, with the consent of the defendsoon as he was advised that other witnesses ant, sworn as interpreter. After some little than those whose names were indorsed upon testimony had been given through the interthe indictment would be called, he would in- preter, defendant's counsel stated that he form defendant's counsel. So far as the rec- was informed by the defendant and a memord speaks upon this matter, this promise was ber of the bar that the interpreter was not fulfilled. Witness McQueen's name appears translating correctly the answers of the witupon the indictment, and no objection wbat- ness. The juror Gronosky spoke up, and ever was made by defendant to the calling as said that several statements were not rightwitnesses of Carl Soderholm, Eva Berg, and ly interpreted. Thereupon he was asked by Lillie Birch. The witness Striker was called the district attorney if he understood fully on the 15th of October. Defendant was noti- the witness, and the juror answered affirmafied on the 11th preceding that the prosecu- tively, and stated that he was willing to act tion would call him as a witness, which was as interpreter. The district attorney then eight days before the defense rested. We are asked the defendant's counsel privately, so not directed to any statute requiring that de- as not to be heard by the court or jury, if fendant shall be furnished with the names of the defendant would consent to the juror's the witnesses called by the prosecution, and acting as interpreter for the witness, to there is no authority, so far as we are ad
which counsel replied, "Make your statement vised, for holding that no person can be called openly to the court." The district attorney as a witness for the people unless his name is then stated that he had endeavored to find indorsed upon the indictment. Section 4925, some person to interpret the witness, but p. 686, 2 Comp. Laws Utah, requires the
had been unable to find one who could fully names of the witnesses examined before the understand witness. Request was then made grand jury to be indorsed upon the indict
of the court that the juror might be permitment before it is presented in court. If this ted to act as interpreter. The defendant and is not done, the defendant may take advan.
his counsel, in open court, consented that tage of it before entering his plea, by submit. the juror Gronosky might act as interpreter ting a motion to set aside the indictment. for the witness. Thereupon the court conThe failure to indorse the names of the wit- sented, and Mr. Gronosky was sworn to act nesses examined by the grand jury upon the as interpreter for the witness. Later the indictment is waived by the defendant by wife of Jacob Lauenberger was called to tespleading to the indictment. People v. Sy- tify by the prosecution, and defendant and monds, 22 Cal. 349; People v. Lopez, 26 Cal. his counsel again consented in open court 113; People v. Jocelyn, 29 Cal. 562. No ob- that the juror should act as interpreter for jection was made to these witnesses testify- her. Without leaving his place in the jury ing for the reason that their testimony op- box, the juror acted as interpreter for these erated as a surprise to defendant. In fact, in two witnesses. This was done with the conmost, if not all, points upon which they testi- sent of the defendant and his counsel, and fied, defendant introduced rebuttal testimony; no objection was made until after the case and impeaching testimony was produced, with had closed, and the jury retired. Then dea view to destroy the weight of the testimony fendant's counsel stated that he desired “to given by the witnesses whose evidence seemed enter an objection and exception to the acto be of great importance. There is nothing tion of the court in permitting the juror in the record to indicate that their testimony Gronosky to act and serve as interpreter." was unexpected by the defense; no applica- Counsel now contends that he was deprived tion for postponement was made in order to of a trial by a constitutional jury of 12 men; meet their statements; and upon motion for that Gronosky, while acting as interpreter, new trial no showing was made by affida vit ceased to be a juror. It is also claimed that or otherwise that defendant was prejudiced the consent given was of no avail, as it was by the failure to have their names indorsed concerning a matter so vital that defendant upon the indictment, or that their evidence could not waive it. Section 3879 of the Comwas false. But, aside from all this, there is piled Laws of Utah of 1888 provides that nothing in our statute requiring the submis- “the judge or any juror may be called as a sion of the names of the people's witnesses to witness by either party, but when this is the defendant, or permitting only those wit- done, it is in the discretion of the court to nesses, to testify for the people whose names order a postponement of the trial, and that it appear upon the indictment.
be taken before another judge or jury." 8. Appellant claims that the court erred in While this section is found in the civil pracpermitting Louis Gronosky, one of the jurors, tice act, section 5386 provides that the rules to be sworn and act as interpreter during the determining the competency of witnesses in trial for two of the 'witnesses. After the civil cases are applicable also to criminal actrial had been in progress several days, the tions and proceedings. And it appears to prosecution called Jacob Lauenberger to tes- have been the rule at common law that a tify as a witness in the cause. The witness juror could be called as a witness. Archb. Cr. Prac. & Pl. p. 150; Rex v. Rosser, 1 Car. & P. tions of the charge of the court, and also the 648; McKain v. Love, 2 Hill, Lib. & Law, refusal of the court to give certain numbered 506. In Mr. Pomeroy's edition of Archb. instructions asked by the defendant. DeCr. Prac. & Pl. is found a marginal note on fendant's counsel presented to the trial court page 150, which reads: "A juror may give nine pages of typewritten matter, paraevidence of any fact material to be com- graphed and numbered from 1 to 22, inclumunicated in the cause of a trial in a crimi- | sive, upon which was indorsed the follownal prosecution. The jury may use that gen- ing: "Comes now the defendant, and reeral knowledge which any man may bring quests the court to instruct the jury as folto be subject matter of the indictment, with lows." Then followed the signature of coun. out being sworn. But if any one of the ju- sel, and the requests. When the judge had rors has a particular knowledge of the sub- concluded his charge, defendant's counsel ject, as, for instance, as to the value of a excepted to "the refusal of the court to give watch in a case where it is essential to prove the instructions requested by defendant, bewhat it is worth,-he ought to be sworn, and ing numbered 1, 2, etc.” Then follow the examined as a witness.” We think, under numbers of all the paragraphs'except three, the statute as well as authority, a juror may the court having adopted them verbatim. be called as a witness in a criminal cause. Also to the instruction of the court defining The question, then, arises, is an interpreter “malice," "deliberation," and "premeditaa witness? Upon this point there seems to tion”; and also to the "charge of the court be no controversy, the opinion being that he in submitting the question of murder in the is. People v. Lee Fat, 54 Cal. 527; 1 Greenl. second degree to the jury, as not being jusEv. § 183; Schearer v. Harber, 36 Ind. 541. tified by the evidence, and tending to misIt is argued that the juror, while acting as lead and confuse the jury.” Thirteen days interpreter, would be so engrossed that he later, and 12 days after the jury had recould not fairly hear, weigh, and determine turned a verdict, and been discharged, withthe evidence; that he might easily give evi- out consent of the attorney for the people dence undue weight and credit by being the or permission of court, appellant's counsel medium of transmission; and that he might took several general exc ptions to the (and did in the case at bar) hear incompe- charge. They were, however, so indefinite, tent testimony. These and other objections and so general, that, even if taken in time, of a like character are urged. We think they would prove unavailing, and would not there is no merit in them. The defendant be considered by an appellate court. It is could not have been prejudiced by permit- the duty of counsel to seasonably call the ting the juror to be the channel conveying court's attention to proceedings in the trial the words to the court and jury. If he were thought to be error and prejudicial, so that not acting as interpreter, he could hear the the trial court can correct the error if made; words of the witness; if incompetent evi- and a failure to do so is such a waiver that dence was given, he would hear it. Instead the party will not be heard to complain of his forgetting the evidence, there would thereafter. Lewis v. U. S., 146 U. S. 379, 13 be more likelihood of his remembering it, Sup. Ct. 136; Alexander v. U. S., 138 U. S. when he had restated it as interpreter. He 355, 11 Sup. Ct. 350; Marks v. Tompkins, did not lose his identity as a juror. We can 7 Utah, 435, 27 Pac. 6; U. S. v. Carey, 110 see no difference between this case and one U. S. 52, 3 Sup. Ct. 424; Railway Co. v. where the juror might have read for the Jurey, 111 U. S. 596, 4 Sup. Ct. 566. "The other jurors some writing offered in evi- rule in relation to exceptions to instructions dence. Suppose a paper had been received is that the matter excepted to shall be so -in evidence, and a witness on the stand asked brought to the attention of the court be
fore the was unable to do so, and a juror sitting near should volunteer or be asked to read it to the any, in his instructions to them, and this court and jury. He might give undue em- is also requisite in order that the appellate phasis to some words; he might be so “en- tribunal may pass upon the precise quesgrossed" in reading as to “not remember" its tion raised without being compelled to contents. To hold that this would remove search the record to ascertain it.” Hickory him from the position of juror, that it would v. U. S., 151 U. S. 316, 14 Sup. Ct. 334; leave a jury of but 11, and would be grounds Jacobson V. State, 55 Ala. 151; Thomp. for a new trial, and especially when it was Trials, $ 2394. The exceptions to the court's consented to, would be sacrificing common definitions of the words “malice," "premedisense to sophistry and absurdity. There is tation," and "deliberation" are also too genno pretense that the juror acted other than eral to raise any question for the considerahonestly and fairly. It is not even hinted tion of the court. There was no attempt to that his interpretation was faulty or biased. indicate wherein there was error in the lanWith this record upon this question, it would guage of the charge. A bare statement that be a monstrous perversion of justice to hold the court erred in defining “malice,” without that this action of the court was reversible pointing out wherein the error lies, is too error.
general. People v. Hart (Utah) 37 Pac. 331; 9. Appellant assigns as error certain por- Holder v. U. S., 150.U. S. 92, 14 Sup. Ct. 10;
to read it, and, owing to some infirmity, he the judge to correct the error, if there be