People v. Wismer

The indictment, in two separate and distinct counts, charged the defendant with the violation of certain provisions of the act of the legislature of 1919, known as the “Criminal Syndicalism Act” (Stats. 1919, p. 281). Both counts were framed upon the fourth subdivision of section 2 of said act. The first charged that the defendant, in November, 1921, at the city of Sacramento, did willfully, unlawfully, and feloniously organize and assist in organizing an organization known as the “Industrial Workers of, the World,” sometimes known and referred to as “I. W. W.” and the “One Big Union,” being a society, group, or assemblage of persons organized and assembled to advocate, teach, and aid and abet criminal syndicalism, as said crime is defined in section 1 of said act of the legislature. In the second count, the defendant is accused of being, at the time and place above mentioned, a member of said organization, having become so willfully, unlawfully, feloniously, and knowingly.

On the conclusion of the presentation of the people’s case, the defendant, through his counsel, moved for a dismissal of the first count on the ground that there was no evidence to support it, and the motion was granted. The ease was finally submitted to the jury ■ on the second count and a verdict of guilty of the crime so charged was returned.

The appeal is by the defendant from the judgment of conviction.

The legal validity of the verdict is challenged on four different grounds, to wit: 1. That error was committed in the denial of challenges to certain jurors on the ground of actual bias; 2. That “practically all the literature introduced by the prosecution” for the purpose of showing the character of the organization of which the defendant is accused of becoming and being a member knowing it to advocate, teach, and aid and abet criminal syndicalism, was permitted to be received in evidence in the absence of proof having first or at all been made that said literature was printed, published, and distributed by and under the. authority of the Industrial Workers of the World; 3. “That the court erred in refusing to permit the defendant to read to the jury the whole of the pieces of literature portions of which had been read on behalf of the prosecution;” 4. That the verdict is contrary to the evidence “in that there was

A careful examination of the record and a like consideration of the points urged for a reversal have led us to the conclusion that points 2, 3, and 4, in the order in which they are above enumerated, are devoid of merit. The cause must be reversed, though, because of rulings disallowing challenges to certain prospective jurors.

Among the veniremen called to the jury-box were seven tentative jurors who stated, upon their voir dire examination, that they had sat as jurors in a case or in eases previously heard in the superior court of Sacramento County and in which the accused were tried on indictments charging them with the identical crime charged in the indictment against the defendant here and of which he stands convicted. These jurors each declared that, as to the particular case in which they had served as jurors, they had formed the opinion that the organization of which it is alleged in this indictment that the defendant herein is a member was an unlawful organization. This opinion, each of these jurors stated, was formed from and upon the evidence adduced in the case or cases in which he (or she) had sat as a juror. Bach of said jurors was challenged on the ground of actual bias as the same is defined in section 1073, subdivision 2, of the Penal Code, viz.: “For the existence of a state of mind on the part of the juror in reference to the case, . . . , which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party.” In each of these instances, the challenge was disallowed after, upon an issue thereon being made by the denial of the challenge by the people, the district attorney had further examined the jurors and thus elicited from them the statement that they could and would free their minds from anything that they had heard at the previous trial or trials in which they had served as jurors and involving the same issue that is involved in this case; that they could and would try the defendant fairly and impartially, according to the evidence and the law as stated to them by the court, notwithstanding the opinion they had formed upon evidence that they had heard at the previous trial or trials that the organization of which the defendant

The record shows that all the seven jurors, with the exception of juror Fiege, were peremptorily excused by the defendant. The record further shows that said Fiege was not excused but was sworn to try the defendant and that he did try him. It is further made to appear by the record that, upon completion of the panel, the defendant had exhausted his full legal quota of peremptory challenges. In fact, the record shows this: That, after the panel had been completed—that is, after twelve jurors were in the box after the allowance of challenges, peremptory and for cause —the following occurred: “The Court, addressing counsel for the defendant: You are satisfied with the jury, Mr. Henderson? Mr. Henderson: Our peremptories are exhausted, your Honor. Are there any more, Mr. Clerk ? I would want to be absolutely sure. Clerk: Yes; I will call these names.” The clerk thereupon read to court and counsel the names of ten persons (of whom six were among the seven who had served as jurors in a trial previously had upon an indictment charging the accused with the offense for which the defendant was on trial) who had been peremptorily excused by the defendant.

Thus it is plainly made to appear by the record that the defendant exhausted the number of peremptory challenges to which he is entitled under the law (Pen. Code, sec. 1070), with juror Fiege, who had sat in a similar trial previously, and had stated that therein he had formed the opinion that the Industrial Workers of the World constituted “an unlawful organization,” and who was unavailingly challenged by defendant for actual bias, among those sworn to try the defendant.

[1] It is clear that Fiege was not legally eligible to serve as a juror in this case, and that the defendant, having exhausted his peremptory challenges, was compelled to accept said Fiege as one of the jurors to try the question of his (defendant’s) guilt or innocence. Nor was Fiege’s disqualification such as that it could be cured by his asseverations that he could and would in the trial of the defendant remove from his mind any impressions or opinion he may have obtained from hearing a previous trial of precisely a similar nature and that he would be able to ae

Section 1076 of the Penal Code, in part, provides: “ . . . In a challenge for actual bias, the cause stated in the second subdivision of section ten hundred and seventy-three must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety ; provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him.”

The above provision involves a departure from the common-law rule, as far as it goes, and, to render a person who has formed an opinion as to the merits of a case eligible to serve as a juror therein, it must be shown that such opinion has been formed upon information received from one or more of the three sources named in said section; so, where a juror has formed an opinion on the merits of the case which has originated or been generated from any other than any of the three sources named in said section, he is disqualified from sitting in the case as a juror, and he cannot, as he may in the cases specified in section 1076, qualify himself as a juror howsoever emphatic may be his declaration that he can and will disrobe his mind of such opinion and give to the defendant a fair trial and so return a verdict strictly in accord with the evidence and the law as it is stated by the court. (People v. Wells, 100 Cal. 229 [ 34 Pac. 718 ]; People v. Miller, 125 Cal. 44 , 46 [ 57 Pac. 770 ]; People v. Helm,, 152 Cal. 532 , 536 [ 93 Pac. 99 ]; People v: Riggins, 159 Cal. 113 [ 112 Pac. 862 ].)

In the Wells case, in which a juror stated that he had an opinion on the merits of the case, it is said: “At common law a juror who entered the box with an opinion as to

But the court added that, where the opinion of the juror was founded upon information or matters coming from a source other than any of those designated in section 1076 of the Penal Code, “that fact of itself is a disqualification under the law, and it is a disqualification even though the juror should declare to the court under oath that, notwithstanding such opinion, he would and could act fairly and impartially upon the matters to be submitted to him. The juror,” proceeds the court in that case, “would not only be disqualified at common law, but disqualified under the Penal Code, for he has not brought himself within the provisions of section 1076, as those provisions require an affirmative showing to the court that his opinion is based upon public rumor, common notoriety, or statements from public journals.”

In People v. Miller, supra, the juror stated that he had an opinion upon the question of the defendant’s guilt or innocence based upon statements made to him by persons with whom he had been acquainted for many years, and whom he believed told him the truth about the case, and that he believed them. He stated, however, that he could and would act fairly and impartially in trying the case and obey the instructions of the court. The challenge by defendant for actual bias was denied by the trial court, and on appeal, in considering the assignment based upon that ruling, the supreme court said: “The juror went into the box with an opinion that the defendant was guilty. Such condition of the juror’s mind was an absolute disqualifiea

In People v. Helm, supra, the court, in discussing the subject in hand, said: “If it is not made to appear that the juror’s opinion is based entirely upon one or all of the three sources of information above named in sec. 1076; if it is shown that his belief has its origin in any other source than one of the three enumerated, he is at once as thoroughly disqualified under the code as he would have been at common law.”

Besides the above cases, see People v. Riggins, 159 Cal. 113 [ 112 Pac. 862 ], and the cases therein cited to the point under discussion at page 119.

In all the above cases the opinion of the juror was based upon information derived from the statements of parties not under oath or made under circumstances in which no duty rested upon the jurors to test and determine their verity. [2] In this case, the jurors referred to, having acted as jurors in a previous trial in which the identical offense charged here constituted the groundwork of the prosecution, founded their opinions as to the character of the organization of which the indictment charges the defendant with being a member, upon sworn testimony, the truth or falsity of which they were required to determine. And the opinion of the said jurors so formed was upon one of the essential elements of the crime charged against the accused. Juror Fiege, who was forced upon the defendant as one of the arbiters of his fate by the ruling denying the defendant’s objection to him as a juror in the case on the ground of actual bias, stated that, at a previous trial of a similar offense, he formed the opinion that the organization known as the Industrial Workers of the World was an unlawful organization or assemblage or society of persons. In other words, the rational deduction from the statement of said juror was that he had previously formed the opinion upon sworn testimony that the organization of which the accused

Clearly, a trial by jurors whose minds, when entering the jury-box, were in the condition in reference to that element of the case that the minds of Fiege and the other six were in cannot be said to be characterized by that absolute fairness to which the law intends and declares that all persons, whatever may be their position in life, according to the social scale or standard, are entitled. There was one other element only to be established to make out a case against the accused, and that was the fact that he was a member of said organization at the time mentioned in the indictment, and this element was removed from the case as an issue by the admission of the defendant, extrajudicially and also before the jury, that he was at the times referred to in the indictment a member of said organization. And thus this case itself furnishes a forcible illustration of the singular wisdom and justness of the law in hedging the great and fundamental right of trial by jury with such restrictive safeguards as will insure to every person prosecuted for a public crime a trial by a jury composed of persons whose minds are not, from the beginning, infected with the slightest predilection for a particular result in the case and who, therefore, can give to him as well as to the people the benefit of their unbiased and unprejudiced judgment on the matters submitted to them.

The attorney-general states in his brief that it does not appear from the record but that the defendant was satisfied with the jury as it was constituted. We do not know of any other more effectual way in which a party to an action could express his dissatisfaction with a jury or a particu

[3] Section 4½ of article VI of the constitution has no application to the situation presented here. The right of

It may be that the result of this decision will subject the people to great inconvenience in the prosecution of cases coming under the criminal syndicalism law, especially as to cases founded on subdivision 4 of the second section of said act, in that, where there are many such cases in a county, the entire body of the people as citizens possessing the general qualifications for jury service might ultimately become disqualified from sitting as jurors in such a case by reason of having served as jurors in cases of like nature previously tried. If such shall be the result of this decision, it is to be greatly deprecated. But such a plea, which is nothing more than argumentum db inconvenienti, can never be allowed except in those cases only where the law which is being construed is, by reason of the ambiguity of its language, of doubtful meaning, in which case it is permissible, if necessary, to give it a construction which, while not involving a departure from its general purpose, will with greater certainty make its application conform to public convenience or result in bringing about a more effectual achievement of the real ends of its enactment. In the present ease, however, we are confronted with no such condition. The law relating to the right of trial by jury is not in such dubious language or doubtful or equivocal phrases as that its real meaning is enveloped in obscurity. The code sections are merely regulatory of the exercise of

The conclusion is that the defendant was, as a matter of law, denied the fair and impartial trial to which he is entitled, and the judgment is, therefore, reversed and the cause remanded.

Finch, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 2, 1922.

All the Justices present concurred.

Richards, J., pro tem., was acting.