PEOPLE
v.
KAMISCHKE.
Docket No. 664.
Michigan Court of Appeals.
Decided May 11, 1966.*238 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Martin B. Legatz, Prosecuting Attorney, and James G. Orford, Assistant Prosecuting Attorney, for the people.
Thomas P. Patterson, for defendant.
McGREGOR, J.
Defendant Kamischke was charged with uttering and publishing a forged instrument. CL 1948, § 750.249 (Stat Ann 1962 Rev § 28.446). Defendant was arrested at a bar with Edward Maliszewski who was charged with a separate offense of uttering and publishing a forged instrument. Each of the men was charged with passing a different one of a group of the same type of checks, stolen from the same place and with the identical payees and forged signatures. The offenses charged occurred at different times and places.
At defendant Kamischke's trial, the jury included six members of the jury which had heard the trial of Maliszewski on the previous day. This defendant was brought into the trial of Maliszewski both by name and reference.[1] The jury found Maliszewski guilty. The evidence in the Maliszewski trial implied a scheme involving Kamischke.
The trial judge and the prosecuting attorney knew that some of the jurors had heard the previous day's trial. The trial court, in his voir dire of the proposed jury, after a juror had stated, "we sat yesterday," replied in part, "That was a completely different case yesterday. That has nothing to do with *239 this matter." The voir dire record does not indicate any answers by the proposed jurors touching upon their qualifications or impartiality to sit as such jurors, or any instructions to such jurors by the trial court of any discernible method of replying to the voir dire questions. GCR 1963, 511.4(3), (4), (5), (7), (8). On two further occasions, such jurors volunteered the information that they had served on the previous day's trial; defense counsel did not make any challenges to such jurors, although he questioned them as to prejudice or bias against Mr. Kamischke due to hearing his name mentioned the day before in a similar case. The jurors who replied disclosed no bias.
From his conviction, this defendant appeals, alleging among other claimed errors that his Federal and State constitutional rights to a trial by an impartial jury were violated.
Did the statements of these proposed jurors indicate their manifest concern with being unable to ignore the incriminating evidence of the previous day's trial and thereby be biased against the defendant, or have a positive opinion of the facts?
In People v. Troy (1893), 96 Mich. 530, defendant was convicted of the crime of assault with intent to do great bodily harm less than the crime of murder.[2] It appears that on the night in question one Flanders and one Ottobein were engaged in a street fight, when a police officer appeared and arrested Flanders. While the officer was arresting Flanders, defendant Troy threw a stone and struck the officer. Defendant Troy was arrested, tried and convicted. During the same term in which defendant was brought to trial, seven of the jurors who sat in Flanders' trial were permitted, under objection, *240 to sit in the case against Troy. In reversing the conviction, the Supreme Court said (p 537):
"We think, however, that the court erred in permitting the jurors who sat in the Flanders case to sit in the present. The facts are nearly identical, and must necessarily have all been called forth in the Flanders trial. The jury in that case must have considered them, and reached some opinion as to the merits of the controversy in the present case. The respondent was entitled to a fair and impartial trial by an impartial jury, who had no preconceived opinions of his guilt or innocence. We are aware that some English and American authorities hold that jurors who have sat in one case are not disqualified from sitting in a case against another joint respondent, who has taken a separate trial, and involving the same set of facts. We are not inclined to follow that doctrine. Where the issue is the same in both cases, it is but fair to the respondent that he have another panel of jurors to try his cause.
"For this reason the verdict must be set aside and a new trial ordered."
In People v. DeHaven (1948), 321 Mich. 327, 334, we find the words "impartial jury" again commented upon:
"The right to be tried by an impartial jury is a constitutional guaranty.[3] We find ourselves in harmony with the meaning of that term as quoted from 20 Words and Phrases (Perm ed), p 191,[4] in Durham v. State, 182 Tenn 577 (188 S.W.2d 555, 160 A.L.R. 746):
"`"The `impartial jury' guaranteed by constitutional provisions is one which is of impartial frame of mind at the beginning of trial, is influenced only *241 by legal and competent evidence produced during trial, and bases its verdict upon evidence connecting defendant with the commission of the crime charged, and further, `consists of twelve impartial men'"'".
It is noted that the prosecuting attorney, in his brief filed herein, did not give any legal citations of authority to sustain the legality of the conviction of the defendant herein.
While the paucity of direct authority on the question of judicial duty to protect the constitutional right of an accused to a trial by an impartial jury is noted, it is also recognized that in many instances the failure of defense counsel to do so loses such right for his client. It may be asked, how can a defense counsel challenge a juror who makes no perceivable answer to voir dire or how can an appellate court make a determination that the defendant's constitutional guaranty of a trial by an impartial jury was protected where there is no record of jury answers to the voir dire. It should be apparent in the trial record that the "impartial jury" guaranteed by our Constitution is a jury with an impartial frame of mind at the beginning of the trial and one that bases its verdict only on legal and competent evidence produced, during the trial, connecting the defendant with the commission of the crime charged. The contrary is portended.
All trial courts are under some obligations to guard and enforce the personal rights secured by our State and Federal Constitutions. Constitution 1963, art 1, § 20 and Constitution 1908, art 2, § 19, accord the right to one accused of crime to a speedy and public trial by an impartial jury. The ineptitude of those charged with the responsibility of providing one accused of crime to a public trial by an impartial jury should not be charged to the *242 accused. There was a violation of the defendant's constitutional right to a trial by an impartial jury.
Judgment is reversed and the cause remanded for a new trial.
T.G. KAVANAGH, P.J., and BURNS, J., concurred.
NOTES
[1] Six witnesses were common to both trials.
[2] See currently CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279). REPORTER.
[3] The Court was interpreting Const 1908, art 2, § 19. REPORTER.
[4] See, currently, 20 Words and Phrases (1959 perm ed), Impartial Jury, p 293. REPORTER.