People v. Tanner

Chief Justice Murray delivered the opinion of the Court. Upon the trial of this cause, which was an indictment for grand larceny, William Jackson was called as a juror, and accepted by the prisoner. The counsel for the State asked said Jackson, “Whether he had any conscientious scruples against the infliction of capital punishment?” to which said juror replied, “he would hang a man found guilty of murder, but that he would not hang a man for stealing.” Whereupon the Court ordered the juror to stand aside, deciding that he was biased, and therefore incompetent. The 9th subdivision of the 347th section of the .act regulating criminal proceedings, enumerates, among the causes of challenge for implied bias, “If the offence charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty;—in which case, he shall neither be permitted nor compelled to serve as a juror.” The act concerning crimes, provides, that any person found guilty of grand larceny, shall be punished by imprisonment in the State prison, not less than one, nor more than ten years, or by death, in the discretion of the jury. It is not our purpose to discuss the policy of this law, although we regret that our legislature have considered it necessary to thus retrograde, and in the face of the wisdom and experience of the present day, resort to a punishment, for less crimes than murder, which is alike disgusting and abhorrent to the common sense of every enlightened people. In order, however, to correct the administration of the law, and secure a due enforcement w'of 'the penalties ordained for its violation, provision has l?een made by which everything like prejudice, interest, or bias iS excluded from the jury box. This provision is not made alone from considerations of humanity for the criminal, but also to protect the majesty of the law. Here the law had attached the penalty of death, as well as imprisonment; and it cannot fail to strike every one, that if the juror could not affix the penalty of death to the crime of grand larceny, he was not in a situation to exercise that discretion, upon a full hearing of the case, which the law contemplated he should possess. By his conscientious scruples or prejudice, a portion of that discretion was cut off; and his verdict could in no case have amounted to more than a sentence of imprisonment. It is contended that the question [259]was too broad, and that the exact words of the statute must be followed. The counsel for the prisoner has cited the case of the Commonwealth v. Buzzel, 16 Pick. 155, to show that a juror cannot be asked whether the crime set forth ought not to be punished by law, or ought to receive a different punishment from that which the law prescribes. It is difficult to say, from an examination of the opinion, whether this point was decided by the Court, or not; but admitting it to be sound law, it has little or no application. It is impossible to separate the verdict from its consequence, the punishment; and the law in making conscientious scruples which render it impossible to find the prisoners guilty, a disqualification, directly contemplates the punishment of such guilt. There was no attempt here to inquire whether the juror thought the crime ought not to be punished by law, or that a different penalty should have been affixed; but simply to ascertain if he had any conscientious scruples against capital punishment, that being one of the punishments visited by law upon the offender, and resulting as a necessary consequence, in the exercise of a discretion by the jury, from a finding of guilty. It is said that the juror was not disqualified because there are various shades of punishment attached to the crime of grand larceny, and in the language of the statute, he had no comssien-A tious scruples which would have prevented him from finding prisoner guilty. It was only from his unwillingness t'q pfiinish the crime with death that he could be said to be inct&nht^tji The words of the statute are, “ if the offence charged M punishable with death.” Here was an offence so punisha®e.^JP|s^k could a juror be said to be competent who would not affix this punishment ? And if the verdict and judgment are consequents one upon the other, how could finding the prisoner guilty, and affixing a less punishment, cure this incompetency? The law has ordained that this offence shall be punished with death; and to allow jurors to sit upon a trial for larceny who declared that they would not impose this penalty, would defeat the intention of its framers, and practically work a repeal of its provisions. It would be a mockery of justice to allow or compel a juror to be sworn and placed upon a jury when he declared that his conscience was so at war with a law that he would not, under any