Goins v. State (46 Ohio St. 457, 1889)

Bradbury, J.

The plaintiff in error, William Goins, •was indicted for aiding and abetting murder in the first degree; the day set for his trial having arrived, there was in attendance a panel of thirty-six jurors, from which a jury to try him was to be selected as the statute in such case provides. ‘Thereupon the prosecuting attorney, by leave of court, entered a nolle prosequi to the charge of murder in the first degree. The court then proceeded to impanel from the thirty-six jurors in attendance on the case, a jury for his trial. To this no objection was offered; but after plaintiff in error had peremptorily challenged two jurors, and his challenge of Christian Stettler had been overruled, as will hereafter appear, he peremptorily challenged him; the court, however, holding the prisoner to be entitled to only two peremptory challenges, overruled this challenge, and Stettler sat as a juror in the case; to all of which the plaintiff in error excepted.

The right of peremptory challenge is to be determined by the provisions of sec. 7272, Rev. Stats., as amended in 1888, (84 Ohio L. 86), together with those of sec. 7277. Section 7272 as amended, reads: “ Every person indicted * * * (for a capital offense) * * * shall be entitled to challenge-sixteen of the jurors peremptorily.” 84 Ohio L. 86. And sec. 7277 provides, that “ except as otherwise provided * * * every defendant may peremptorily challenge two of the-panel.” It is only “ otherwise provided ” in capital offenses,, so that, except in capital cases, the defendant in a criminal case is only entitled to two peremptory challenges. After the nolle had been entered to the deliberation and premeditation charged in the indictment, the prisoner did not stand indicted for a capital offense; the charge against him was reduced to aiding and abetting murder in the second degree, and his right of challenge was governed by sec. 7277, 'Rev. Stats. That the jury had been drawn and summoned under sec. 7267, Rev. Stats., made no difference in this respect. He-may have been entitled to be tried by a jury drawn and summoned in the usual way if he had so demanded; hut whether he was or not, as he did not choose to exercise the right, his-neglect to do so did not enlarge his right to peremptory challenges, this right being determined by the offense charged against him, and not by the manner in which the jury had been brought in. In this ruling of the court we see no error.

Christian Stettler was called and examined touching his qualifications as a juror in the case. He stated that the father of the deceased had talked with him about the killing, and went into the particulars of the transaction as if he knew the facts; that he had also read of the case in a newspaper, and had formed an opinion respecting the guilt of the principal. Thereupon the defendant challenged him for cause. The court then, as the statute directs, inquired further of the juror, who stated that he believed he could render an impartial verdict in the case, and that he could do so even if the principal were on trial. The challenge was then overruled, and the prisoner excepted.

In respect of challenge for cause, sec. 7278, Eev. Stats, as amended (81 Ohio L. 54), provides: * * * '“if a juror has formed * * * an opinion, * * * the court shall thereupon proceed to examine such juror as to the grounds of such opinion; and if such juror shall say that he believes he can render an impartial verdict notwithstanding such opinion, and if the court is satisfied that such juror will render an impartial verdict on the evidence, it may admit him as competent to serve in such case as a juror.”

The court did not expressly find that it was “ satisfied ” that the juror could render an impartial verdict in the case, but the fact of admitting him as a juror must be* taken to include, by necessary implication, a finding by the court that it was satisfied of his impartiality. Upon no other ground could the court legally admit him as a juror.

The trial court had before it the juror and his statements. We have these statements embodied in a bill of exceptions, from which it appears not only that the juror had read an account of the case in a newspaper, but had received from the father of the deceased, a narrative of the circumstances of the homicide, and had at one time formed an opinion respecting the guilt of the principal. Under that state of fact, to admit him as a juror was an extreme application of the discretion permitted by the statute; yet, standing by itself, it is not such an abuse of that discretion as to warrant a reversal of the judgment on that ground alone; but in view of the difficulty nearly all men experience in getting rid of opinions based upon hearing a detail of the circumstances of a transaction by one who professes to know them, it might well become an importent factor in the case, were we reviewing the whole record to ascertain if a fair trial had been had and substantial justice done.

The principal in the homicide having been convicted and sentenced for manslaughter, the prisoner moved the court to order that he should not be put upon trial for a higher degree of oifense; and in support thereof, introduced the record of the trial, conviction and sentence of the principal. The motion was overruled, and the prisoner tried and convicted of murder in the second degree. Whether this qixestion could be raised in limine by a motion, we need not stop to enquire, for-the x’ecord discloses the x’esult of the tx'ial of the principal, and the íxxotion for a new trial brought tlxe question again before-the court.

The precise question whether in the case of a cx’ixxxe admitting of degrees of guilt, where the principal offender has been 'tried and convicted of one of the lower degrees, one indicted with hiux as axx aider and abettor can afterwards be tried and convicted of one of the higher degrees of the exime, has never been decided by this court; but cases decided by it can be-found, which, in their principle, determine the question.

The statute relating to aiders and abettor’s, provides that “ Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were tlxe principal offender.” Rev. Stats, sec. 6804.

Under this statute, or others like