In view of the character of the charges preferred against juror Flint, and of the examination and proceedings had thereon and in connection therewith, all being made and had in the presence of the jury and against the objection of the defendant, the vital question, in my opinion, in this case is: Was the court vested with legal discretion to retain the eleven jurors on the panel against defendant's objection? Or, in other words, was not fatal error committed in empaneling juror Savage in place of juror Flint, who had been discharged, instead of discharging the eleven jurors and empaneling a new jury?
In the first place, it was not necessary to have preferred said charges, or to have held said examination or proceedings in the presence of said eleven jurors, but I am of opinion that it was improper to have done so. It appears to me that it would have been proper and the right course to have pursued for the court to have put said jurors in charge of the sheriff to be retired from the court room, and the juror Flint retained during the examination of the charges made against him; then it might have reasonably been said that the remaining jurors could not have been prejudiced by anything which had occurred in the matter of the impeachment of Flint; that, therefore, no error was committed to defendant's prejudice thereby, and, upon the authority of the Pritchard case, the action of the court might be sustained, if, at all.
It is provided by statute, and is as binding on the courts as any other statutory provision, that: "The common law of England, so far as it is not repugnant to, or in conflict with the constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all courts of this state." (General Stats. 3021.) And it seems to be settled by the common law writers and by nearly, if not quite, all of the decided cases on the subject, *Page 113 that under the common law, in all cases where a juror is discharged during the progress of the trial from any cause of necessity, the balance of the jurors must be discharged, or rather the discharge of the one by the court operates to the discharge of all the balance, but the balance may be immediately recalled into the jury-box and their examination be entered into as originally upon their voir dire, if either party so desires, and the respective parties may have their challenges over. By our statute the common law rule is abrogated to this extent and no further, that is: "If before the conclusion of the trial a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn and the trial begun anew, or the jury may be discharged and a new jury then or afterwards empaneled." (General Stats. 4262.)
Only in the class of cases above named does our statute give the court discretion to either empanel a new juror or to discharge the whole jury and empanel a new one at its option. In the case at bar the juror was not discharged on account of sickness, and hence the above statute is not applicable to it, and we have no other statute on the subject, but we have the common law, with its mandate that in such cases the, jury shall be discharged. At this point in the procedure we come to the parting of the ways between the common law and the statute. The statute plainly points out the course to be pursued in empaneling a new jury, which, of course, must be followed, unless the parties consent to proceed under the common law rule of immediately calling the remaining jurors back into the box for re-examination and challenges; so, if there be any. authority for retaining the eleven jurors, as was done in this case, we must look elsewhere for it besides the statute or the common law.
No judicial authority has been cited in point, and in my opinion none can be found to sustain the respondent's contention on the question under consideration, except in those states where the statute authorizes such practice as was adopted by the trial court in this case.State v. Pritchard, 16 Nev. 101, andPeople v. Stone, 2 Scam. (Ills.) 326, have been cited and seem to be relied on as to such authority. But I am of opinion that they cannot be properly so considered. *Page 114 In the Pritchard case, upon the question whether the court below erred in empaneling another juror in the place of the juror who had been discharged, instead of discharging the remaining eleven jurors and empaneling a new jury, the supreme court said: "In considering the facts of this case, in connection with the authorities to which our attention has been called, we have arrived at the conclusion that this action of the court was correct. The remaining eleven jurors were competent. No objection was urged against them. They had been selected, agreed upon and accepted in the mode provided by law. No testimony had been offered. It seems to us that the discharge of an incompetent juror creates no necessity for the discharge of the eleven remaining competent jurors."
Now, the facts in that case were these: The jury were empaneled and sworn to try the case; thereupon the court took a recess till next morning. Upon the reconvening of the court counsel for the defendant was permitted by the court to ask the jurors the following questions, to wit: "Since you were examined by me before, touching your qualifications to serve as jurors, has anything happened or occurred to your recollections to render you improper jurors to your knowledge?" Thereupon one of the jurors informed the court and counsel, in substance, that there had been some misapprehension or some mistake made in his examination as to his qualifications as a juror, and stated that he could not find a verdict of guilty on a charge of murder upon circumstantial evidence. Upon this statement and ground he was discharged. It is apparent that in that proceeding nothing occurred so that it could reasonably be said that it might have prejudiced the balance of the jurors against the defendant. Indeed, it was admitted on the record by stipulation of the parties and confirmed by the court: "That neither the plaintiff, the defendant nor said juror had been guilty of any intentional fraud or deception in procuring the swearing of said juror to try the case, except in so far as the answers made by said juror on his voir dire may operate as such fraud,"
But in the present case the record shows a materially different state of facts. Here the juror was charged, in effect, *Page 115 with deception, fraud and the crime of perjury, with the view, on his part, of getting on the jury to favor and acquit the defendant, and the court found, in effect, that the charge was true. Here, also, by the strongest implication, the defendant and his family were charged with being accomplices in the crime of said juror, and this imputation was left resting on them by the district attorney and the court, instead of exonerating them therefrom.
During the progress of the examination of witnesses in support of these charges, the district attorney put defendant's attorney on the stand as a witness, evidently for no other purpose than to connect the defense with the alleged fraud and perfidy of said juror. He was subjected to quite a lengthy examination, and all the questions put to him by the district attorney appear to have been put with said view. The witness having stated that he had received an intimation the evening before that there was one juror on the panel favorable to the defendant, juror Flint asked him from whom he had received this intimation; the witness declined to answer, "on the ground that it was privileged." The district attorney then said to, and asked, the witness as follows: "Let us find out whether it is so or not: Was it from your client, his father, or brother, or mother?" The witness declined to answer. The court, in passing upon the question of discharging Flint, expressed the opinion that the juror had deceived both of the counsel and the court. This relieved defendant's attorney from all blame in the matter, so far as the opinion of the court was concerned, but it did not remove the imputation cast upon the defendant and his family of complicity.
After Flint had been discharged, and in explanation of the grounds of his discharge, the court remarked in the presence of the eleven jurors, to wit: * * * "I became convinced that he came upon the jury to aid and assist the defendant in this case, for what inducement I do not know." The remaining jurors might reasonably have inferred from that remark that, in the opinion of the court, the juror had inducement, and that such inducement moved from the defendant or from some one in his behalf.
Counsel for defendant asked that the remaining eleven *Page 116 jurors be discharged on the ground, among others, "of the evidence adduced before them, tending to disqualify them, and tending to bias and prejudice them against the defendant," and he asked "to be allowed to examine them on their voirdire as to their qualifications," and asked to be allowed a peremptory challenge to the new juror Savage. The court replied: "If I thought your challenge was taken in good faith I should be induced to set aside them all."
By counsel — "I assure your honor it is in good faith."
By the court — "I will pass upon that; the law gives you eight; I am impressed with the fact that you simply desire to obtain from the court that [which] is erroneous. The challenge is not taken in good faith, and it will be denied. You may have the benefit of an exception."
By counsel — "I will take it."
It seems to me that the above remarks impeaching the sincerity of counsel cast discredit on the whole defense of the defendant, and would have a tendeucy to create fatal prejudice in the minds of said jurors against the defendant.
The charges having been made and the examination thereof had before the jury against the defendant's objection, and the above remarks made in their presence, can it be reasonably said that the eleven jurors were not thereby prejudiced against the defendant and the theory of the defense, and hence remained competent jurors? Under these facts and circumstances was the court clothed with a discretion to retain said eleven jurors on the panel against the objection of the defendant, and without giving him the privilege asked for of examining them as to the state of their minds? Certainly the ruling in the Pritchard case does not go so far as to sanction such practice or authorize such discretion as were adopted and exercised in this case under the state of facts existing here, nor was it intended by the court that the rule adopted in that case should have such effect as is clearly manifested by the language used in the above quotation from the opinion of the court. It is equally clear to my mind that the case of People v. Stone,supra, does not support the action of the court in the present case. In that case a juror was discharged on the ground of alienage, and a new juror empaneled, and like the Pritchard case there was nothing *Page 117 occurring in the proceedings relative to the juror discharged that could reasonably have tended to prejudice the remaining jurors against the defendant or his defense, so far as we can learn from the opinion there rendered. The court held in that case, as in the Pritchard case, that the discharge of the one juror did not necessitate the discharge of the eleven, for the reason that no injustice had been done, that the rights of the prisoner had not been infringed, and no law violated. The court then says: "If a doubt could, however, remain on this point," that is, on the point of empaneling a new juror, instead of a new jury, "it is definitely and conclusively settled by the statute relative to jurors." So it seems that the decision was finally based on the statutes of Illinois, which give the courts discretion to fill one or more vacancies on the jury, where one or more jurors are discharged from necessity, and to retain the other jurors on the panel. But we have no such statute.
It seems to me further, that if, from what the court said in that case can be construed as basing the decision "on general principles," and not solely on the statute, it was done so on the ground of the peculiar facts of that case, and is not authority in any other case containing materially different facts. The court said: "The case is sui generis.* * * We have been referred to authorities which are admitted to be the rule in the British courts, and if the facts in this case were of the nature which marked the cases that have been decided there, and in like cases in our own courts, we should have no difficulty in coming to the same results on the present occasion."
Can it be said no injustice was done in the present case, no law violated, no rights infringed, and that the eleven jurors were not prejudiced on account of these proceedings had in their presence on matters outside of the proper investigation of the charges contained in the indictment? I am of opinion that we are not warranted in entertaining such presumption.
Can it be held with any reasonable plausibility that the action of the court, in the matters under consideration, should be sustained because it is not shown here that these proceedings prejudiced the eleven jurors against the defense when the only means by which defendant might or could *Page 118 have shown it was denied him in the court below? This question is susceptible of but one answer, and that in the negative. It is clear to my mind that to so hold would be denying the accused in such cases the right to protect himself against such prejudice, however great in degree it might be, created by such procedure.
It seems to me that it cannot reasonably be presumed that these charges against the defendant, and the proceedings had, and imputations made of complicity of the defendant and his family in procuring Flint to be placed on the jury through his alleged deception, fraud and perjury, did not prejudice the eleven jurors against the defendant and the theory of his defense, so as to render them incompetent.
I am of opinion that nothing scarcely is more potent to create such prejudice against a party than arousing suspicion that such party has packed, or attempted to pack, a jury by which he is to be tried, and that but few men are capable of resisting such prejudice and to rise above its influence, in their deliberations as jurors.
Further, it is evident, to my mind, that to affirm the judgment of the trial court, in consideration of the facts developed in this case, would be establishing a rule in this state without law and without precedent, and which would operate, in many cases, in the practical denial of the right of trial by jury — such trial as is contemplated by the statute, the common law and the constitution. It seems to me that such rule would be unwarrantable judicial legislation, instead of proper adjudication.
In what has been said above, it is not intended as a criticism of any matters occuring on the impeachment of said juror Flint, or on the trial thereof, or of any remarks made by the court in connection therewith, except in so far as the same occurred in the presence of the eleven jurors.
In consideration of the facts above given, I am of opinion that the court was not clothed with legal discretion to retain said eleven jurors on the panel without the consent of the defendant, and against his objection, and without giving him the privilege asked for of examining the said jurors as to the state of their minds before being sworn to try the case with the new juror. Upon this ground, and for the reasons hereinabove *Page 119 given, I concur in reversing the judgment and granting a new trial.