The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1875-02-04

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In old English cases. In view Of tue fact
that the great weight of authority in this
country Is the other way, and that the
formation of an opinion is not considered
sufficient cause for challenge, 1t is our duty
to present this question before the case at
| this time. At recent case tried in this
county former expression of opinion was
considered sufficient cause for challenge,
the court wisely holding, that although the
| Juror asserted he had no opinion at the
time, that he was disqualified, having ever
had an opinion he should not be allowed to
say he had none then and that he could try
the case impartially; the case was remand
ed and new trial granted. The courts in
many instances have wiped out the old dis
tnctions made in English courts, and we
find the question now considered is, What
kind of an iopinion? and what was the
opinion? was il fixed and substantial
opinion which stood in the way of his being
a Juror The constitution Of Vermont also
distinctly recognizes the necessity of II
more guarded rule in criminal than civil
actions.
In State V. Ward, 80 Vt. 225, it was
held that the opinion of a juror that the
law nnicting the punishment of death was
wrong, disqualified him although he said
that if he was fully satisfied that the re-
spondent was guilty, he would return a
verdict of guilty. And in delivering the
opinion of the court, Judge Wilson says
at would not, we think, be gravely in
sisted that a trial by jurors who were CON
trolled or influenced by prejudice arising
from prcconceived opinion, was an Impair
tia trial by jury within the meaning of the
constitution and laws of the state" The
argument of inconvenience OF getting
! jurors who have not formed opinions, in
these days of newspapers, etc. can have
no force whatever. in Il matter OF so grave
thing, do not make up their minds from
rumors or newspaper reports and If they
did, ii would be no reason FOR overriding
the constitution of the state, and going
counter to the very fundamental idea of
| jury trials, aud subiectng men to be
tired for their lives by partial, preiudiced,
biased jurors. The argument. II it has foin-
dation, which deny, is against jury trials.
The idea is startling, that men accused OF
crime, must be subject TO trial by jurors
who set down to the trial with the belief of
their guilt. the life or death of the re-
spondent, whether guilty or innocent,
dwindlcs into insigniicance in comparison
with the Importance of holding the trial
by jury up to the only principle that gives
it any value, the constitutional security of
imparliaity The fact that some men do
form opinions from newspaper reports and
and rumors, as to the guilt of persons
charged with crime, is evidence of an in
hercnt unfitncss in them to be jurors for
they must belong to that class who decide
upon the first statement they hear, and for
get that all questions have two sides
The rule in any event, should be in cali
tai case, that the juror must be able to say
that he has not expressed an opinion and
has not any bias The juryman, Aaron
n. Lovelaud. could not say this
The next point in the bill Of exceptions
is in regard to the expert testimony. War
rem II. Smith is not an expert simply n
lawyer and with the ordinary experience
of lawyer. He offers himself as an eX-
pert simply on the experience Of lawyer.
and is admittcdto testify on that ground
Such case we find rejected in New IIamp-
shire. Mr.. Smith does not show himself
to be any different from any other lawyers,
and was not an expert because he had not
made business of identifying handwrit-
ing. This is a dangerous rule to go by.
No witness except an expert is competent
to give an opinion simply by comparison
of hands by juxtaposition. Non-eyperts
can only give opinions in cases where they
have previous acquaintance or knowledge
of the handwriting by which the genuine
ness of the controverted specimen is to be
tested.
The objection TO the testimony Of Cain,
that he was at Brandon at the circus and
did not see Phair there, was well taken,
and the testimony should have been cx-
cluded, on the ground that it was not the
best evidence that he was not there, and
was SO remote s to afford ground of con
lecture only. The best evidence that Phaii
was not at Brandon would have been proof
that he was elsewhere. The fact, thai
Phair was not at Brandon, had n double
bearing in establishing the the theory of
the state. First, that Phair had given &
false account of himself Second, that il
tended to establish the theory of the state
that he was at Mrs. Freezes house from
Sunday night until after the murder, Tues
day morning. To establish these materia
circumstances, they produce one man Gu
of the thousands assembled in the large
town of Brandon, to swear he did not SEE
Phair there, and the court allow tn,
jury to pass upon that barren evi
dence alone, to establish beyond reason
able doubt those material links in thei
chain of circumstantial evidence. Sucl
evidence is not only obnoxious to the rul
requiring the best evidence, but if admit
Z. ted, respondent is not called upon to con
/ tradict it, but may rely upon the court t
2 instruct the jury that it is insufficient t
q establish the fact beyond reasonabl
I doubt and failure so to do is error. |
q Commonwealth v. Kinison, Mass GAG,
4 was held that in an indictment for havin
4 in possession counterfeit bank note, it
c not sufficient for witness to swear to tli
o identity of the note, unless it has been col
q stantly in their possession, or they hay
= put a private artificial mark upon it befol
noriin0 with IL IL is well established tbs