The facts sufficiently appear in the opinion. *Page 104 Respondent was convicted of murder of the first degree.
At the trial, after a jury had been empaneled and sworn and the witnesses examined, the district attorney called the attention of the court to the fact that one of the jurors was disqualified and asked leave to present testimony in support of the charge. Upon permission given, witnesses were examined whose testimony tended to show that A. A. Flint, the juror against whom the investigation was directed, had said several months prior that the defendant was guilty; that he had conscientious scruples against capital punishment and would never vote for a conviction of murder of the first degree were he one of the jury. The court excused him, another was substituted, the witnesses were re-examined, a verdict of murder of the first degree returned, and judgment entered thereon. Various exceptions were taken in behalf of the appellant to the rulings of the court in this particular.
First, as to the discharge of juror Flint.
Lord Coke lays down the rule that "a jury sworn and *Page 107 charged in case of life or member cannot be discharged by the court or any other, but they ought to give a verdict." (1 Inst. 227b.) Following Coke, Hawkins, in his Pleas of the Crown, 2d vol. 568, says that "no juror can be challenged either by the king or prisoner without consent after he hath been sworn, * * * unless it be for some cause which happened since he was sworn."
In Wharton's Case (Yelverton, 23) one of the jurors that had been accepted and sworn was challenged for a cause that was in esse when he was sworn, but unknown at the time to the queen's counsel. The challenge was denied.
But in the case of the two Kinlocks (Foster, 22) the power of the court to discharge jurors underwent careful examination, and it was decided that the general rule as laid down by Lord Coke had no authority to warrant it and could not be universally binding. In that case it was determined that the court had power to withdraw a juror at the request of the prisoners for the purpose of imparting to them a defense which they could not otherwise have taken.
The decisions in this country sustain the position that a juror may be excused when his detention upon the jury would defeat the ends of public justice.
In U. S. v. Morris, 1 Curtis, 23, it was decided that after witnesses had been examined the prosecuting officer could, in the discretion of the court, examine witnesses upon the question of the bias of a juror.
In discussing the subject, after stating the common law rule, Judge Curtis said: "But it by no means follows that it is not in the power of the court, at the suggestion of one of the parties, or upon its own motion, to interpose and withdraw from the panel a juror utterly unfit, in the apprehension of every honest man, to remain there. Suppose a prisoner on trial for his life should inform the court that a juror had been bribed to convict him — that the fact was unknown to him when the juror was sworn and that he had just obtained plenary evidence of it, which he was ready to lay before the court, is the court compelled to go on with the trial? Suppose the judge, during the trial, obtains, by accident, personal knowledge that one of the jurors is determined to acquit or convict without any regard to the law or the evidence, *Page 108 is he bound to hold his peace? In my judgment such a doctrine would be as wide of the common law as it would be of common sense and common honesty. The truth is that this rule, like a great many other rules, is for the orderly conduct of business. There must be some prescribed order for the parties to make their challenges, as well as to do almost everything else in the course of a trial. As matter of right, neither party can deviate from this order. And it is the duty of the court to enforce these rules, which are for the general good, even if they occasion inconvenience and loss in particular cases. But there goes along with all of them the great principle that, being designated to promote the ends of justice, they shall not be used utterly to subvert and defeat it; being intended as a fence against disorder, they shall not be turned into a snare; they do not tie the hands of the court, so that when, in the sound discretion of the court, the public justice plainly requires its interposition, it may not interpose; and it would be as inconsistent with authority as with the great interests of the community to hold the court restrained.
"A very eminent English judge has treated this rule concerning challenges just as I believe it should be treated. Chief Justice Abbot says: `I have no doubt that if, from inadvertence, or any other cause, the prisoner or his counsel should have omitted to make the challenge at the proper moment, the strictness of the rule which confines him to make the challenge before the officer begins to administer the oath, would not be insisted on by the attorney-general, or, if insisted on by him, would not be allowed by the, court.' (The Derby Case, Joy on Confessions, etc., 220.) That is, like other rules of procedure in trials, it is in the power of the court to dispense with it when justice requires."
In U. S. v. Coolidge, 2 Gall. 363, Lee, an indispensable witness to the government, refused to be sworn. Judge Story said: "The question is simply this. A party is on trial before a jury, and a circumstance occurs, which will occasion a total failure of justice if the trial proceed; have the court, in such an emergency, power to withdraw a juror? It has been stated from the bar that, in capital cases, the court have not this power; but in a case in Poster's Crown Law, *Page 109 and in several other cases, it has been held that they have. In misdemeanors, there is certainly a larger discretion, and until the cases just mentioned, capital trials were generally supposed to be excepted. It is now held, that the discretion exists in all cases, but is to be exercised only in very extraordinary and striking circumstances. Were it otherwise the most unreasonable consequences would follow. Suppose, that in the course of the trial the accused should be reduced to such a situation as to be totally incapable of vindicating himself — shall the trial proceed, and he be condemned? Suppose a juryman taken suddenly ill, and incapable of attending to the cause; shall the prisoner be acquitted? Suppose that this were a capital case, and that, in the course of the investigation, it had clearly appeared, that on Lee's testimony depended a conviction or an acquittal; would it be reasonable that the cause should proceed? Lee may, perhaps, during the term, be willing to testify. Under these circumstances, I am of opinion that the government is not bound to proceed, but that the case be suspended until the close of the term, that we may see whether the witness will not consent to an examination."
In State v. Allen, 46 Conn. 531, upon the trial, after witnesses had been examined, the court heard evidence touching the disqualification of a juror, who had before being sworn expressed the opinion that defendant was guilty. The disqualification was proven, the juror excused, and the jury discharged.
In State v. Bell, 81 N. C. 591, it was held that the duty of courts to guard the administration of justice against fraudulent practices was an exception to the rule that a jury sworn in a capital case cannot be discharged without the prisoner's consent until they have given a verdict. So when a juror had fraudulently procured himself to be selected for the purpose of acquitting the prisoner the juror was properly excused.
In People v. Ollcott, 2 Johns. Cases, 301, Justice Kent stated his conclusions as follows: "I conclude, then, that as no general rule or decision that I have met with exists to the contrary in a case of misdemeanor, and as the rule, even in capital cases, abounds with exceptions, and is even questioned, if not denied, by the most respectable authority, that *Page 110 of nine of the judges of England, it must from the reason and necessity of the thing belong to the court, on trials for misdemeanors, to discharge the jury whenever the circumstances of the case render such interference essential to the furtherance of justice. It is not for me here to say whether the same power exists in the same degree (for to a certain degree it must inevitably exist) on trials for capital crimes, because such a case is not the one before the court; and I choose to confine my opinion strictly to the facts before me. With respect to misdemeanors, we may, with perfect safety and propriety, adopt the language of Sir M. Foster (p. 29), which he, however, applies even to capital crimes, `that it is impossible to fix upon any single rule which can be made to govern the infinite variety of cases that may come under the general question touching the power of the court to discharge juries sworn and charged in criminal cases.' If the court are satisfied that the jury have made long and unavailing efforts to agree; that they are so far exhausted as to be incapable of further discussion and deliberation, this becomes a case of necessity, and requires an interference. All the authorities admit that when any juror becomes mentally disabled by sickness or intoxication, it is proper to discharge the jury, and whether the mental inability be produced by sickness, fatigue or incurable prejudice, the application of the principle must be the same. So it is admitted to be proper to discharge the jury when there is good reason to conclude the witnesses are kept away, or the jury tampered with, by means of the parties. Every question of this kind must rest with the court, under all the particular or peculiar circumstances of the case. There is no alternative; either the court must determine when it is requisite to discharge, or the rule must be inflexible that, after the jury are once sworn and charged, no other jury can, in any event, be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, that moment a door is opened to the discretion of the court to judge of that necessity, and to determine what combination of circumstances will create one."
In the inquiry touching the disqualification of the juror three witnesses were examined. Two of them, Kassell and *Page 111 Moss, swore, among other things, that Flint had said some months previous, in their presence, that he was opposed to capital punishment; and Dunham, the third witness, said that he had often heard Flint say that the defendant was guilty.
The court excuse the juror for two reasons: First, that he had formed and expressed an opinion that the defendant was guilty, and, second, that he was opposed to capital punishment.
For either of these reasons the juror may have been excused. The subject was within the sound discretion of the district court, and we cannot interfere with its exercise except in cases of its abuse.
Second — Whether it was correct to empanel another juror in the place of Flint, or to discharge the jury:
In People v. Damon, 13 Wend. 351, after a juror had been sworn in chief and taken his seat, it was discovered that he was incompetent to serve. He was excused and another juror substituted. In the opinion of the court, Chief Justice Savage said: "I apprehend no authority can be necessary to sustain the proposition that the court may and should in its discretion set aside all the persons who are incompetent jurors at any time before evidence is given." The inference to be drawn from this language is that, after evidence is given, no substitution should be made. At the common law, if, during the trial, an incompetent juror was discovered, the whole jury was discharged.
The rule has not been changed by the legislation of this state. It is as binding upon courts as statutes adopted by the legislature.
Adhering to it, I conclude that a mistrial took place when Flint was excused. The substitution of another juror in his stead was contrary to all precedent. The case illustrates the evil of the course pursued. The jury had been occupied for upwards of three days in hearing the testimony on the part of the prosecution when Flint was excused. Under these circumstances it is not presumable that the jury was indifferent.
Defendant was entitled to a legal and impartial jury, and *Page 112 all the substantial requirements of law should have been observed in its empanelment.
The judgment should be reversed and a new trial granted, and it is so ordered.