ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a writ of error to the Supreme Court of the State of Kansas. William Baldwin was proceeded against, in the District Court of the Second Judicial District of Kansas, sitting in and for Atchison County, by an information charging him with the crime of murder. On a trial before a jury, he was found guilty. A motion for a new trial was denied; and the
judgment of the court was rendered that he be confined at hard labor, in the penitentiary of the State, for one year from January 11, 1886, and until the governor of the State should by order direct his execution, at which time, as specified in such order, not less than one year from that date, he should be hung. He removed the case by appeal to the Supreme Court of the State, and it affirmed the judgment, in December, 1886. An application for a rehearing was denied in July, 1887. The case is brought here by him. The decision of the Supreme Court of Kansas is reported as State v. Baldwin, 36 Kansas, 1.
The errors assigned here are (1) that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, and that, therefore, the jury was not a legally constituted tribunal, and so the defendant will, under the judgment of the court, be deprived of his life without due process of law, and be denied the equal protection of the law; (2) that the evidence on which the judgment was founded was so inadequate to show that the defendant was guilty of the crime of murder, that the judgment amounts to a denial to the defendant of the equal protection of the law.
As to the question of the oath administered to the jurors, the journal entry at the trial states that, issue being joined upon a plea of not guilty, there came a jury of twelve good and lawful men, whose names are given, "having the qualifications of jurors, who being duly elected, tried, and sworn well and truly to try the issue joined herein," the trial proceeded. The bill of exceptions states that "a jury was empanelled and sworn to well and truly try the issues joined herein."
The statute of the State of Kansas provides (Compiled Laws of Kansas, c. 82, art. 11, § 208; c. 80, art. 15, § 274,) that "the jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence." The statute does not give in words the form of the oath. It is contended that the record affirmatively shows that the oath required by the statute of Kansas was not administered to the jurors, but that
they were only sworn "well and truly to try the issue joined herein," or "to well and truly try the issues joined herein."
The record does not purport to give ipsissimis verbis the form of the oath administered to the jurors. The statement of the oath is entirely consistent with the fact that the oath required by the statute of Kansas was administered, especially in view of the statement in the journal entry that the jurors were "duly" sworn. On this subject, the Supreme Court of Kansas says correctly, in its opinion: "It is highly important and necessary that the oath should be administered with due solemnity, in the presence of the prisoner, and before the court, substantially in the manner prescribed by law. It may also be conceded that the record should show that the jury were sworn, and, when the record does purport to set out in full the form of the oath upon which the verdict is based, it must be in substantial compliance with law; otherwise the conviction cannot stand. The assumption by counsel that the oath as actually administered is set out in full in the record, it seems to us, is unwarranted. What is stated in the record is but a recital by the clerk of the fact that the jury were sworn. The swearing was, of course, done orally, in open court, and it is no part of the duty of the clerk to place on the record the exact formulary of words in which the oath was couched. He has performed the duty in that respect when he enters the fact that the jury were duly sworn, and when that is done the presumption will be that the oath was correctly administered. The method of examining the jurors as to their qualifications, or whether the oath was taken by them while standing with uplifted hands, according to the universal practice in the State, or otherwise, is not stated. In making mention of the impanelling and swearing of the jury, there is no description of the parties between whom the jury are to decide; nor, indeed, are there any of the formal parts of an oath stated. The statement made is only a recital of a past occurrence; and it is manifest that there was no intention or attempt of the clerk to give a detailed account of the manner of impanelling the jury, or to set out the oath in hoec verba. It may be observed that in the form of the verdict returned, and which was prepared
and presented to the jury by the trial judge, it was stated that the jury were ...