State v. Thompson

BASKIN, J.

Tbe information alleges tbat tbe defendant “on tbe eighth day of January, A. D. 1901, at tbe county of Garfield, State of Utah, in tbe nighttime of said day, to-wit, about tbe hour of eleven in tbe night of said day, did forcibly, unlawfully, feloniously, and burglariously break and enter tbe store of Cameron & Sevy, a corporation, with intent then and there the goods and chattels of tbe said Cameron & Sevy, a corporation, in tbe said store then and there *316 being, then and there unlawfully, feloniously, and burglari-ously to steal, take, and carry away, and then and there, in the said store, three dollars in scrip, of the value of three dollars, of the goods and chattels of the said Cameron & Sevy, a corporation, in said store then and there being found, then and there feloniously and burglariously did steal, take, and carry away, contrary to the form of the statute in such'case made and provided, and against the peace and dignity of the State of Utah.” James E. Showalter, a member of the jury impaneled and sworn to try the case, when being examined on his voir dire, was asked the question by the attorney of the defendant, “Do you know of any reason why you should not sit in this case?” and he answered, “No, sir.” The defendant made a motion for a new trial on several grounds, one of which was based upon the facts that said James F. Sho-walter was at and before the trial a director and stockholder of the said firm of Cameron & Sevy, whose store the defendant was charged with having burglarized, and was indebted to said firm, and that these facts were not known to the defendant or his attorney until after the trial was over. The motion was overruled, and the defendant excepted. This action of the trial court is one of the assignments of error relied upon by the defendant. The foregoing facts were shown by an affidavit filed in support of the motion, and are not disputed by the attorneys for the State. The defendant was entitled to a trial by an impartial jury. The facts disclosed show that Showalter was not an impartial juror. If he is a man of ordinary intelligence, he must have known that his relation to said firm was a good and sufficient reason why he should not sit in the case.

The Attorney-General contends that, as the facts in question were a ground of challenge, the defendant, if he wished to take advantage of them, should have raised the question by challenging the juror. It does not appear that either the defendant or his attorney was aware of the facts until after *317 tbe trial. The juror should have revealed his relation to said firm. His answer to the question asked him by defendant’s attorney was well calculated to mislead the defendant and set his mind at rest in regard to the impartiality of the juror.

The judgment is reversed, and the case remanded for a new trial.

MINEE, C. J., and BARTOH, J., concur.