Los Angeles herald., 1910-09-11

.
be alleged with such precision that
identity would be shown in the plead
ings if he should thereafter be charged
with the same offense.
"There should be no challenge al
lowed to a regular panel or special
venire of trial jurors. The court should
make a finding that the regular or spe-
cial panel has been lawfully formed,
the finding to be conclusive in all sub
seduent proceedings. The withdrawal
of the challenge to trial jury panels will
tend to prevent delay. Moreover, the
panel is an incident to the securing OF
a jury. The personnel of the jurors IS
the essential involved. On their voire
dire the Jurors are subjected to close
examination as to their general as well
as their particular qualifications. If the
Juror is not qualified he may be chal-
lenged for cause. In every instance,
however, the trial court should exact
scrupulous enforcement of the law in
summoning jurors. In cases involving
great publicity a great deal of time is
consumed in the formation of trial
jury. Much of the delay is caused by
the state of the, law regarding the
qualifications of jurors. But this is not
the only cause of the delay The coun-
sci frequently use the time of the court
in an attempt to disqualify juror for
reasons other than legal cause The
SIIOTL Is LOL always AAieldS W oCNNAS -
fair and intelligent juror. but rather
one who will meet the needs of the de-
fendant's situation. This is one of the
greatest abuses under the present law.
An amendment was proposed in the
last legislature to require the judge TO
conduct the examination, with such as
sistance from the counsel for the par
ties, in the trial of a challenge, as he
might desire. 1t was proposed to COM
pensate for this amendment by in
creasing the number of peremptory
challenges. In the interest of economy
of time and public money this change
would be warranted AT present the
people are only entitled to one-half the
number of peremptory challenges as
the defense. 1t was proposed to give
each the same number-twentyfo in
capital cases and twelve in all other
felonies.
DIsoUALIFICATIONs
at will not supplement what has been
said under the head of suggested
changes in the constitution on the
subject of bias and prejudice of jurors.
Under the common law person was
disqualified from serving as a trial
juror If he had formed or expressed
an unqualified opinion on the subject
matter of the controversy. This con-
stituted implied or legal bias-that Is
to say, when the fact that the un-
qualified opinion had been formed is
proved, the person, as matter OF
law became disqualified. It would be
immaterial what the disposition of the
individual toward the case at the time
might be, or the extent to which he
could control his will power. AS time
went on it was found impossible to
adhere to this rule, If the law was to
be enforced. The development in the
art of printing, increased publicity by
newspapers and other means of spread
ing information, the extended forms of
communication through the railroads
and other incidents of modern life,
tended to the enlightenment of the in
dividual, and he forms and expresses
opinions accordingly.
"In 1S73-74 the legislature of this
state changed the law. What was
formerly implied or legal bias was
made actual bias Actual bias in
voives essentially questions of fact.
This amendment was supplemented by
another, that no person should be dis
qualified by reason of having formed
or expressed an opinion founded on
public rumor, statements In public
Journals, or common notoriety, pro-
Vided it appear that he can and Will,
notwithstanding such opinion, act fair
ly and impartially on the issues to be
tried.
HARD To QUALIFY
"It was probably the purpose Of
those responsible for this change to
bring to the discharge of jury service
persons of character and intelligence.
But that such is the result of the
change in the rule will not be claimed
by any one having any knowledge on
the subject. It is found difficult to
have persons who keep abreast of the
times and who are informed in mat
ters of general interest qualify as
Jurors in cases which excite great pub
lie interest. This is chiefly due to the
decisions on the subject. 1t is held
that because these amendments are in
derogation of the rule at common law
they must be strictly construed. 1t
has been declared that these amend
rnents to the statutory law make an
exceeding narrow change in the rule
at comomn law.
"It Is the law Of decision that when
it appears the person has formed or
expressed an opinion going to the
merits Of the matter it must affirfna-
lively be shown that such opinion rests
either upon statements in public jour-
nails, public rumor or common motor
iety. This rule presents great diff
Guilty. It is not always practicable to
establish the source of the opinion. II
this cannot be done affirmatively the
person is not qualified to serve, how
ever capable he may appear to the
court passing on the question.
"In cases which attract widespread
attention the difficulties presented by
the rule of these decisions are almost
insurmounta BILE. There are no adjudi-
cations in this state as to what constl-
tutes a statement in a public journal
within the meaning of the statute, but
it has been held in other states that
there is no difference between the in
dividual hearing testimony in open
court and reading it in a newspaper.
The weight of authority is in favor OF
this view. 1t is a common occurrence
nowadays to have the testimony before
the grand jury, the committing magis-
trate or the trial court published in the
newspapers in the form of questions
and answers. Hence, If a person forms
an opinion upon such reading, or If 1t
cannot be affirmatively shown that it
was not based upon the published tes-
timony, he must be held disqualified.
Under such a rule the administration
of the law must be denied the service
Of the most intelligent citizens.
MAY ACT FAIRLY
"In my opinion no person who has
formed or expressed an opinion on the
merits of the case should be held dis
qualified if ii appear that he can and
will act fairly, provided such opinion is
not based upon a personal knowledge
of a material fact or upon the state
ment of a person whom the prospective
juror believed had personal knowledge
of such fact.
"It is unfortunate that the terms of
the present statute are involved by the
provision OF the constitution. The ap-
Iaf "a hu