Opinion
No. 11,981.
Decided January 3, 1928.
Plaintiffs in error were convicted of illegal possession and sale of intoxicating liquors.
Affirmed. On Application for Supersedeas.
1. JURY — Service — Statutory Construction. A juror has not "served," as that word is used in C. L. § 5882, unless he has actually sat in the trial of a case.
2. CRIMINAL LAW — Intoxicating Liquor — Accessory. In an action against husband and wife for illegal sale of intoxicants, there being testimony to the effect that the wife was present when liquor was sold by the husband, and warned purchasers, the evidence being conflicting, it is held that her motion to dismiss was properly overruled. If the evidence was true, she was an accessory and could be charged and convicted as a principal.
3. Misconduct of District Attorney — Instructions. Where counsel for defendant objected to statements of the district attorney in his argument to the jury and requested an instruction that they be not considered by the jury, the record being silent on the subject, it will be presumed that the jury was properly instructed.
4. VERDICT — Impeachment — Affidavits of Jurors. Jurors are not permitted to impeach their own verdict by affidavits.
5. JURY — Deliberations — Court Authority. A judge has no authority to summon jurors before him for examination as to what occurred in the jury room touching their deliberations in reaching a verdict.
6. CRIMINAL LAW — Verdict — Passion and Prejudice. In a prosecution for a violation of the prohibition act, the contention that a verdict of guilty was the result of passion or prejudice, overruled.
Error to the County Court of Otero County, Hon. E. C. Glenn, Judge.
Mr. E. W. McDANIEL, for plaintiff in error.
Mr. WILLIAM L. BOATRIGHT, Attorney General, Mr. WILLIAM W. GAUNT, Assistant, for the people.
THE plaintiffs in error, Sam Waite and Enid Waite, husband and wife, hereinafter referred to as defendants, were convicted and sentenced on the three counts of an information charging them with the unlawful possession of intoxicating liquor and with keeping for sale and selling the same. The defendants prosecute error and apply for a supersedeas.
1. The first three assignments of error are based upon the action of the trial court in overruling defendants' challenge for cause to three several jurors, on the ground that the jurors challenged had served within a year on juries in the district or county court, or both. The statute, sec. 5882, C. L. 1921, reads: "That the fact that any person summoned in any way to serve as a juror in any district or county court shall have served as a juror in either of said courts, at any prior term, within one year next preceding, shall be a sufficient excuse for such person from service and may also be ground for challenge for cause to such individual summoned."
The juror Hile, challenged, was summoned to attend as a juror at the January, 1927, term of the district court, but did not sit in the trial of any case. The juror Hood, challenged, was summoned to attend as a juror at the June, 1927, term of the county court, but did not sit in the trial of any case at that term. The juror Raymond Moore, also challenged, was summoned to attend as a juror at the October, 1926, term of the district court, and at the June, 1927, term of the county court, but did not sit in the trial of any case in either court.
Defendants cite Denver City Tramway Co. v. Kennedy, 50 Colo. 418, 117 P. 167, as sustaining their position, but that case does not decide the question here raised. The court, in that case, did not say what constituted service as a juror. We have not been cited to any decision of this court, nor do we know of any, where the precise question here presented has been passed upon.
In Kansas, where a similar statute was under consideration, the Supreme Court of that state held that the juror must have actually served — must have sat as such in the trial of a case. State v. Lowe, 56 Kas. 594, 597, 44 P. 20.
In Missouri, the statute of that state provided that "No petit juror shall be permitted to serve on such jury for more than one week consecutively during any term of court." The Supreme Court of Missouri held that the statute limited the right of challenge to the time of actual service of the juror, and not to the period of his attendance upon the court under the venire. State v. Rose, 271 Mo. 17, 22, 195 S.W. 1013.
The same construction was placed upon a similar statute in Oklahoma. Stuard v. State, 6 Okl. Crim. 94, 96, 116 P. 204.
In State v. Rose, supra, the court cited State v. Thorne, 81 N.C. 555, 558, in which the North Carolina court said, "The disqualification attaches to the juror who `has acted' or served as such, and not to one who has been at the court under a summons, liable only to be called on for such service." The ruling there made was subsequently cited with approval by the same court in State v. Whitfield, 92 N.C. 831.
The only authority holding to the contrary, so far as we know, is People v. Estes, 303 Ill. 602, 136 N.E. 459, wherein the Supreme Court of that state said, "We may further add that a juror who has been in attendance the full two weeks during the trial of cases completes his statutory service of two weeks although he may have been rejected on every case wherein he was tendered as a juror."
Our statute expressly makes a distinction between a person "summoned in any way to serve as a juror," and one who "shall have served as a juror." The juror may be summoned to serve, but he may not actually serve, i. e., may not actually sit in the trial of any case, and unless he has actually done so, he has not served. The challenges were properly overruled.
2. The next assignment of error is that the court should have sustained defendants' motion to dismiss the case as to Enid Waite. We do not perceive any reason why this motion should have been sustained. The defense was an alibi, and also that they had neither in their possession nor sold any intoxicating liquors. The evidence was conflicting. There was much testimony to the effect that Mrs. Waite was present with her husband when the liquor was sold and paid for, and that she, at the time, warned the purchasers to beware of the bridge, as that was a bad place to be found with intoxicating liquors in their possession. If that evidence was true she was an accessory and could be charged, and convicted, as a principal. The evidence being conflicting, the court was right in overruling the motion to dismiss and in submitting the case to the jury.
3. The defendants assign as error that the trial court erred in not instructing the jury to disregard certain alleged misconduct of the deputy district attorney, and certain alleged improper statements made by him to the jury, during the closing argument. The record shows the following: "Mr. Allen summed up the case in rebuttal, during the course of which he pointed to People's Exhibit `A,' stating: `You heard George Wells testify here, and noticed the condition he was in: The loss of that arm is the result of drinking that stuff.' (Indicating People's Exhibit `A.') (By Mr. McDaniel) I object seriously to this argument of counsel; there was not a word of testimony in the case to that effect, and that is absolutely prejudicial, and I ask the court to instruct the jury not to consider what counsel has said."
It does not appear that the court ruled upon the request at that time, and no exception was saved. Whether the court later instructed the jury as defendant requested, we do not know, as the court's instructions are not contained in the record. The presumption is that the jury was properly instructed.
4. A further contention of defendants is that the court erred in not granting them a new trial because of alleged misconduct of the jury in the jury room, while deliberating upon their verdict. Defendants claim that the verdict of guilty was reached by reason of statements made by certain jurors, attacking the reputation, for truth and veracity of one of defendants' witnesses. This claim was supported by the affidavit of Mr. McDaniel, defendants' attorney, in which he states that the affidavit is made upon information and belief, the information having been obtained from conversations with some of the jurors who refused to make affidavits concerning what occurred in the jury room. The trial court refused the request of defendants, that the jurors be brought in for examination upon the hearing of the motion for new trial.
Manifestly the action of the court was right. Jurors are not permitted to impeach their own verdict by affidavits. Johnson v. People, 33 Colo. 224, 242, 80 P. 133, 108 Am. St. Rep. 85; Heller v. People, 22 Colo. 11, 19, 43 P. 124; Baxter v. Beckwith, 25 Colo. App. 322, 324, 137 P. 901.
If the affidavits of jurors are not admissible to impeach their verdict, it necessarily follows that the court had no authority to summon the jurors before him for examination as to what occurred in the jury room.
5. There is nothing disclosed in the record to support the contention that the verdict of the jury was the result of passion or prejudice. There appearing no error in the record, the supersedeas is denied and the judgment affirmed.