People v. Le Doux

The petition for rehearing is denied. In the petition two matters are pressed upon the attention of the court which merit consideration. *Page 557

1. It is argued, with much apparent earnestness, that because defendant had not exhausted all of her peremptory challenges at the time of her acceptance of the last juror and the impanelment of the jury, she should not be listened to in the appellate court where she urges the error of the trial judge in overruling her challenge to the panel because of the bias of the sheriff. No one versed in the law can question, or we think does seriously question, the grave error that was committed in overruling defendant's challenge to the panel and in proceeding with the selection of the jury from such venire. But it is said that as the authorities are abundant and the rule well settled to the effect that this court will not review the alleged improper ruling of the trial court upon a challenge interposed to anindividual juror, if it shall be made to appear that the jury was completed without the exhaustion by the defendant of all peremptory challenges, so the same rule should be applied to a case such as this, where the challenge is to the whole panel; and if it shall be made to appear, as here it does, that a jury was taken while defendant still had unused peremptory challenges in reserve, it should be held as a matter of law that the error of the trial court is conclusively presumed to have been without injury to the defendant. Or, wording it differently, we are asked to say to defendant's counsel: "If you had arbitrarily exhausted your peremptory challenges we would then, for the admittedly erroneous ruling of the trial court in denying your challenge to the panel, have granted your client a new trial. But because you did not thus exhaust your peremptory challenges, we will not consider your objection, and your client must hang." Quite obviously the sole result which could ensue from this would be the execution of this woman under a new ruling upon a question of law. And this ruling would serve only to hang the woman, since in every subsequent case, enlightened by the extraordinary view thus expressed, defendants would exhaust their peremptory challenges and so bring the matter before this court under circumstances which, as has been said, it is conceded would cause a reversal of the case. But the reason why this court refuses so to rule does not rest alone, nor even largely, upon the fact, grave though it be, that the ruling would be the death warrant of a woman who, if her lawyers could have seen into the workings of the mind of the appellate *Page 558 court, would easily and assuredly have prevented this result by exercising their peremptory challenges — the reason of this court's refusal is based upon the fact that there is no true, substantial analogy between the two classes of cases, and that therefore the application of the rule touching the challenge of an individual juror to the case of a challenge to a panel would be not only without reason in law, but against the reason of the law.