State v. Vogan

The opinion of the court was delivered by Martin, C. J.

: I. We are of opinion that E. H. Ebert was not competent as a juror. He had heard the county attorney and several other persons discuss the supposed facts, and had related them himself. He entertained very erroneous and deep-seated views respecting his duties as juror in the case, and these were probably strengthened by the overruling of the defendant’s challenge for cause. The constitution guarantees to every person charged with crime a trial by an “impartial jury,” and, as the defendant exhausted all his peremptory challenges, the error of the court in overruling the challenge of Mr. Ebert for cause must be held material, although he was afterward excused on the peremptory challenge of the de *63 fendant. (The State v. Brown, 15 Kan. 400 ; The State v. Miller, 29 id. 43, 47 ; The State v. Beatty, 45 id. 492, 499.)

II. As it is enacted by section 201 of the code of criminal procedure that ‘ ‘ no person who believes the punishment fixed by the law to be too severe for the offense . . . shall be sworn as a juror,” perhaps Mr. Monroe ought to have -been excused, notwithstanding the challenge for cause was interposed by the defendant. The statute was, doubtless, intended for the protection of the state as represented in the prosecution, and to relieve men called as jurors from the onerous and distasteful duty of participating in a trial which may result in a punishment of the accused which, in the opinion of the juror, is excessive, and out of proportion to the offense. But it is difficult to see how a defendant could be prejudicially affected by the retention of such a man on the jury, or why a judgment of conviction should be reversed on that account.

The instructions of the court were sufficiently favorable to the defendant, and there was no error in refusing the three asked by him, the points therein, so far as correct, being fully covered by the instructions given. It was not a proper case for an instruction as to an attempt to commit the offense, for, under the evidence, the defendant was guilty of the completed crime, or not guilty at all. The case is quite distinguishable in this respect from The State v. Grubb, 55 Kan. 678 .

III. The record in this case is justly subject to all the adverse criticism devoted to that in The State v. Lewallen, 55 Kan. 690 , and more. In addition to the faults of that document, this embraces 86 typewritten pages of the examination of all the jurors on their *64 •voir dire, although exceptions were taken to two only, and their whole examination occupies but 10 pages. These, with a statement that the defendant exhausted all his six peremptory challenges, ought to have been set forth in a bill of exceptions, and made part of the record.

Because of the improper overruling of the defendant’s challenge of Mr. Ebert for cause, the judgment is reversed, and the case remanded for a new trial.

All the Justices concurring.