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cuting offenders under the temper. State (1908) 17 Wyo. 55, 96 Pac. 148, ance laws, or whether they had con- 17 Ann. Cas. 222. tributed to any funds for such a In Boyle v. People (Colo.) supra, purpose, were proper when asked with where, in a prosecution for larceny a view to call out facts upon which of cattle, certain jurors were objected intelligently to base a peremptory to on the ground that they were challenge. Lavin v. People (1873) 69 members of an association known as Ill. 303, 1 Am. Crim. Rep. 578. The the Cattle Association, which had for court was not called upon to deter- one of its purposes the prosecution mine whether an affirmative answer of cattle stealers, the court held that to the foregoing questions would have the jurors objected to were not disbeen ground of challenge for cause. qualified although they were mem

The court in State v. Mulroy (1922) bers of such an association, where it 152 Minn. 423, 189 N. W. 441, ad- appeared that they had not done anymitted that “doubtless the court (trial thing toward the prosecution of the court) should have permitted the defendants, nor had contributed anyjurors to answer” questions pro- thing toward the expense of the pounded by the attorney for the de- prosecution, nor were bound in any fendant in a prosecution for violation way to such a contribution, nor were of the liquor laws, inquiring of the affected by any pecuniary interest in jurors if they were or ever had been

the case,

present or future. The members of a society or company or court remarked, however, that it association which had for one of its would be well “if, in the exercise of a objects the prohibition of the liquor sound discretion, jurors belonging to traffic, in order to enable th defend- such associations should be excused ant intelligently to exercise his per- in all cases where an intelligent and emptory challenges, but, as it ap- impartial jury can be impaneled in peared that the evidence of guilt in the community without the pale of this case was so conclusive, the fail- such organizations. But the bare fact ure of the trial court to allow these that one is a member of an organizaquestions could not have prejudiced tion which is under no obligation or the defendant. Especial attention is duty to unduly prosecute criminals or called to the strong dissenting opinion persons charged with a particular of Holt, J., concurred in by Dibell, J. crime is not per se a legal disqualifica

tion affecting his competency to sit as c. Societies for the detection and prose

a juror in the trial of such a case.” cution of thefts of live stock, etc.

In Musick v. People (1866) 40 Ill. In the following cases it has been 268, the court held, in a prosecution held that membership in associations for larceny of a horse, that certain for the prosecution of live-stock jurors in the cause were not disthefts is not a ground of disqualifica- qualified because of their affiliation tion of a juror in a cause where the with an association organized for the defendant is being prosecuted for purpose of detecting and prosecuting such a crime, in the absence of any horse thieves. After stating the showing that the juror objected to is universally recognized principle that actively interested in the prosecution all persons have a right to be tried by of the case, or has contributed funds a fair and impartial jury, the court towards the prosecution of the de- says: "But does the fact that perfendant: Boyle v. People (1878) 4 sons belong to an association whose Colo. 176, 34 Am. Rep. 76; Musick v. object is to detect crime raise a prePeople (1866) 40 Ill. 268; State v. sumption that they are prejudiced Wilson (1859) 8 Iowa, 407; State v. against a person charged with a Van Hoozer (1921) 192 Iowa, 818, 185 criminal offense; or that they would N. W. 588; State v. Flack (1892) 48 · not be able to give him a fair and imKan. 146, 29 Pac. 571; Wilburn v. Ter- partial trial? We think that it raises ritory (1900) 10 N. M. 402, 62 Pac. no such presumption. In one sense, 968, 14 Am. Crim. Rep. 500; Starke v. all persons living under a civilized

31 A.L.R.-27.


form of government are members of tion of certain jurors in a prosecution such an association. The very object against the defendant for horse stealof all government is to protect in- ing, these jurors were shown to be dividuals in their rights, and to pun- members of an association for the ish persons who invade such rights. prevention and prosecution of larceny, And every citizen who pays a tax the court, in State v. Flack (1892) contributes money to aid in convicting 48 Kan. 146, 29 Pac. 571, held that persons guilty of crime; and all per- membership in such an organization

are liable to be compelled to was not a ground of challenge for devote time to effect the same end. cause, as it appeared that the jurors It is for this that jurors and witness- concerned had never taken any oath es are required to attend courts of in connection with such association, justice."

and, judging from their answers upon In a prosecution for larceny of a the voir dire, could try the defendant horse, the court held in State v. or any person charged with larceny Wilson (1859) 8 Iowa, 407, that a as impartially as though he were question propounded to a juror as to being prosecuted for some other ofwhether he was a member of any

fense. association for the prosecution of In a prosecution for the larceny of persons arrested for horse stealing, cattle, the court held in Wilburn v. even if answered in the affirmative, Territory (1900) 10 N. M. 402, 62 would not have disqualified the juror. Pac. 968, 14 Am. Crim. Rep. 500, that In answering the contention of de- where a challenge for cause of a juror fendant, that the question was proper upon the ground of bias or prejudice as a basis for determining whether because of his membership in, and he should'exercise a peremptory chal- subscription to the funds of, an aslenge, the court was of the opinion sociation organized for the purpose of that the ruling of the trial court that prosecuting parties suspected of the the juror might be asked “whether larceny of cattle, is overruled by the he was a member of any organization trial court, the action of the trial existing in the country, or elsewhere, court as trier of the challenge will be engaged in prosecuting the present sustained in the absence of evidence cause," sufficiently preserved the de- that the court abused its discretion. fendant's rights in this particular, Membership in an association one and was not an improper exercise of of the purposes of which was the the discretion of the trial court. detection and prosecution of parties

A member of an organization known for the larceny of sheep or live stock, as the “Antihorse-thief Association," the members of which paid dues and formed for the purpose of bringing were liable to assessments, was held to justice persons guilty of stealing in Starke v. State (1908) 17 Wyo. 55, horses and automobiles, said member 96 Pac. 148, 17 Ann. Cas. 222, not having contributed towards rewards to be a ground of disqualification of given by the association to persons a juror in a prosecution against acsecuring the conviction of such of- cused for the larceny of sheep, in the fenders, was held in State v. Van absence of a showing that the assoHoozer (1921) 192 Iowa, 818, 185

ciation to which the juror belonged N. W. 588, not disqualified as a juror

was in some manner connected with in a case against a party for larceny or interested in the prosecution of the of an automobile, where it appeared

instant case, that the association was not in any

III. Membership in fraternal order. way concerned with the prosecution of defendant, and the juror testified

Where a defendant was on trial for that such membership would in

murder, he should have been allowed way bias his judgment in the instant to ask each juror, when called and case, and that he could give the de. sworn on the voir dire, whether he fendant a fair and impartial trial. was a member of either of the secret

Where upon the voir dire examina. societies known as the Odd Fellows,

the Knights of Pythias, or the Sons otherwise, of the denomination or of Hermann, upon a statement of the order is involved. Sebring v. Weaver counsel for the defendant that the (1910) 42 Pa. Super. Ct. 588. Nor, decedent had probably been a member says the court, was it a ground for of one or more of these orders, the withdrawing the juror that the fact purpose of the inquiries being to en- was incidentally brought out, in the able the defendant judiciously to examination of the witness for the exercise his peremptory challenges. plaintiff, that the decedent was in State v. Tighe (1903) 27 Mont. 327, attendance upon a Masonic meeting 71 Pac. 3. The court says: A de- at a certain time and place. fendant should be permitted great In Burgess v. Singer Mfg. Co. latitude in examining jurors, so as to (1895) Tex. Civ. App. —, 30 S. W. be in a position intelligently to exer- 1110, the trial court was held to be cise his challenges, and whenever in error in refusing to allow an there is a fair doubt as to the pro- examination of jurors on their voir priety of a question it is better to dire as to whether they were members allow it."

of the order of Knights of Pythias In an action for damages against or Odd Fellows. a surgeon for malpractice, the court

IV. Other societies. held in Van Skike v. Potter (1897) 53 Neb. 28, 73 N. W. 295, that it was

In People v. Reyes (1855) 5 Cal.

347, where not error to refuse to permit examina

the defendants were tion of jurors on their voir dire as

Mexicans, indicted for assault with to their membership in any secret

intent to commit murder, the court society, as in this case

no secret held that it was error for the trial society was directly or indirectly in

judge to refuse to allow defendants' volved, and no useful or just purpose

counsel to ask a prospective juror could have been served by permitting

if he was a member of a secret the jurors to answer the question.

political society known as the Know The court admitted that a litigant has

Nothings, and under obligations as a the right to examine jurors for

member of such society which might the purpose of determining whether

create a prejudice against foreigners, grounds exist for a challenge for

The court remarks: "To ascertain cause, but the pertinency of the ques

whether a bias exists in the mind of tions advanced are to be determined,

the juror, resort must be had to his according to the court, by the sound

declarations to others, or to

his discretion of the trial court from the

sworn statements when interrogated. nature of the case on trial. And the

As the juror knows best the condition court expressly states that it does not

of his own mind, no satisfactory wish to be understood as holding

conclusion can be arrived at without that in no case would it be proper to

resort to himself. Applying this test ask a juror whether he belonged to

then, how is it possible to ascertain a secret society; all that the court de

whether he is prejudiced or not, uncides on this point is that the ques

less questions similar to the foretion was impertinent in the instant

going are propounded to him? He is case.

charged with belonging to a secret It was not a ground of challenge

association, and with being, as a memto a juror, that he was a Master ber of such association, under obligaMason, in a suit wherein one of the

tions which might create a prejudice parties belonged to the fraternity of against foreigners who may reside in Freemasons. Purple v. Horton (1834) the country. To ascertain that fact, 13 Wend. (N. Y.) 9, 27 Am. Dec. 167, and in order to purge the juror of

A juror is not incompetent because the charge of bias, he is asked the he and one of the parties to the question, 'Have you at any time taken litigation are members of the same an oath, or other obligation, of such religious denomination or fraternal a character that it has caused order, if no interest, pecuniary or prejudice in your mind



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foreigners? This certainly was not interested in the result, nor had an impertinent question in a cause formed or expressed any opinion on where foreigners were parties, what- the merits of the case, the objects and ever reasonable effect it might have purposes of the association being the upon the minds of the triers."

mutual protection of its members in Membership in secret order their contractual and business relaknown as the “United Mine Workers tions with the employer; there being of America" was held in Noonan v. nothing in their oath as members of Saline County Coal Co. (1912) 173 such organization which would interIll. App. 541, not to be a ground of fere with their duties as jurors in a challenge for cause, in an action be- case between member and tween a member of said organization operator, each of the challenged juand an employer, where the chal- rors stating that they could and would lenged jurors lacked none of the quali- try the case fairly and impartially. fications fixed by the statute, nor were

R. P. D.





V. PAULINE FOX, Admrx., etc., of Valentine Fox, Deceased, Appt.

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(178 Wis. 369, 190 N. W. 90.) Work and labor — services rendered under mistaken belief of marriage. .

1. A woman who, in good faith, lives with a man under the mistaken belief, caused by his fraud, that she is his wife, may recover compensation from his estate for the value of the services rendered him.

[See note on this question beginning on page 424.] Husband and wife presumption sive against her good faith in enter

against one entering into marriage ing into the marriage, where she is before notary public.

assured that it is an absolute divorce, 2. No presumption can be made and she states that she was not aware against a woman because she entered that there were different kinds of diinto a marriage contract before a no- vorce. tary public and witnesses, where a

Work and labor services by woman civil contract of marriage is valid.

living in illicit relations with man. - notice of divorce from bed and

4. A woman who knowingly and board effect. 3. The mere fact that a woman

voluntarily lives in illicit relations about to enter into a marriage con

with a man can recover no compensatract with a man is shown his divorce

tion for services rendered him while from a former wife, which is only so doing. from bed and board, is not conclu- [See 28 R. C. L. 680.]

(Eschweiler and Rosenberry, JJ., dissent.)

APPEAL by defendant from a judgment of the Circuit Court for Dodge County (Davison, J.) in favor of plaintiff in an action brought to recover the value of personal services and the rental value of a house furnished her deceased husband during the time she lived with him under a mistaken belief of marriage. Affirmed.

(178 Wis. 369, 190 N. W. 90.) Statement by Vinje, Ch. J.:

entered into the contract of November Plaintiff filed a claim against the 21, 1914, that Valentine Fox was not estate of Valentine Fox, deceased,

divorced. claiming that she believed herself Perkins v. Best, 94 Wis. 173, 68 N.

W. 762; Rindskopf v. Myers, 87 Wis. lawfully wedded to him, and while

84, 57 N. W. 967; Andrus v. St. Louis occupying the relation of wife to

Smelting & Ref. Co. 130 U. S. 643, 32 him she rendered services for him

L. ed. 1054, 9 Sup. Ct. Rep. 645; Clodand gave him a house in which to felter v. Hulett, 72 Ind. 137; Jaggar live, and, among other things, asked

v. Winslow, 30 Minn. 263, 15 N. W. 242. for compensation for the value of Messrs. Lueck, Clark, & Lueck for her personal services and for the respondent. rental value of her house. The is

Vinje, Ch. J., delivered the opinsues were submitted to a jury and

ion of the court: it found: (1) That Valentine Fox,

The verdict is vigorously assailed for the purpose of inducing the by appellant because it finds that plaintiff to marry him, represented plaintiff entered into the marriage to her that he was free to marry with Fox in good faith. The prinher; (2) that plaintiff, in entering cipal grounds for the argument are into the marriage with him relied

that the parties entered into a civil upon such representation as true; contract of marriage before a no(3) that she had a right to rely upon tary public and witnesses, and were such representations; (4) that she not married in the usual manner; did not know before his death that

that she had had exhibited to her he had no legal right to marry her; the decree of divorce which Mr. Fox (5) that during the entire period had secured from his first wife, from November 21, 1914, until Jan

which decree was one from bed and uary 30, 1921, she continued under board, and not an absolute one; and the belief that he had the legal right that she had been told by the former to marry her; (6) that the value per wife and daughter that she was livweek to her of the services lost by ing in adultery with Mr. Fox. her by reason of entering into the

Since the law recognized as valid marriage contract with him was $3;

a civil contract of marriage at the and (7) that the reasonable value

time this was entered into (Becker per month of the house which she

v. Becker, 153 Wis. 226, L.R.A. furnished him was $6. The court

1915E, 56, 140 N. W. 1082), it canentered judgment for plaintiff for

not be held error for the jury to find the services and rental for six years, that there was nothin the sum of $1,445.52, and the de

Husband and

ing suspicious or wife-presumpfendant appealed.

wrong in entering tion against one Messrs. Stephens & Morrison and F. into a lawful con- marriage before W. Hall, for appellant:

tract of marriage.

notary public. Claimant cannot be heard to say The claim that, since plaintiff saw that she was induced to enter into the

the judgment for divorce from bed contract by the fraud of Valentine

and board, she must have known it Fox.

was not an absolute Lyannes v. Lyannes, 171 Wis. 381,

-notice of di177 N. W. 683.

divorce, as Mr. Fox No claim could arise without ex- represented it to be, and boardpress contract.

is not persuasive. Taylor v. Thieman, 132 Wis. 38, 122 Were she a party to the instrument, Am. St. Rep. 943, 111 N. W. 229; Kess- or versed in law, the claim would ler's Estate, 87 Wis. 660, 41 Am. St.

rest upon more substantial grounds. Rep. 74, 59 N. W. 129; Ellis v. Cary,

But she was neither. It is true the 74 Wis. 176, 4 L.R.A. 55, 17 Am. St.

instrument concerned her vitally, Rep. 125, 42 N. W. 252; Pellage v. Pel

but she may well have believed that lage, 32 Wis. 136; Wells v. Perkins, 43 Wis. 160.

it was an absolute divorce. It recitThe plaintiff is conclusively pre

ed that it was a divorce "from bed sumed to have known at the time she and board forever," and she may

vorce from bed


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