42 Tex. 377 | Tex. | 1874
The facts in this case are substantially the
The important question of fact is, was Black the person who was at Butler’s with the man who did kill Butler. Whether he was there or not, as may be inferred from the evidence, depends to a great extent upon the consideration of the time Butler was killed, and the time and distance from Butler’s, at which he was seen by the witnesses before and after the time Butler was killed, as to which no intimation of opinion will be here given.
The ruling of the court upon the application for a change of venue was the same, upon the same facts, as that in the case of Walker, their application having been made together, they being indicted in the same indictment. They severed on the trial, after their joint application for a change of venue had been overruled.
The charge of court in this case was the same in substance as that in the case of Walker v. The State, except that part of it quoted in the opinion in the Walker case relating to the alibi, which was omitted in the charge of the court in the Black case. What was said in the opinion in the Walker ease in relation to the overruling of the application for change of venue, and in relation to the other portions of the charge of the court, except concerning the alibi, need not be here repeated, but reference may be had to that opinion, as applying to this case, with the exception mentioned.
Our Constitution provides that “in all criminal prosecutions. “ 'the accused shall have a speedy, public trial, by- an impartial “jury. (Bill of Bights, Section 8.)
The Code has provided the means of securing an impartial jury, by causing certain questions to be propounded to the juror, for the purpose of ascertaining whether or not he is liable to certain specified grounds of challenge for cause, one of which is as follows : “ That from hearsay or otherwise there “ is established in the mind of the juror such a conclusion as “ to the guilt or innocence of the defendant, as will influence “ him in his action in finding the verdict. For the purpose of “ ascertaining whether the last cause of challenge exists, the “ juror shall be first asked whether in his opinion the coneln- “ sion so established will influence his verdict. If he shall “answer in the affirmative, he shall be discharged. If he “ shall answer in the negative, he shall be further examined by “ the court, or under its directions, as to how his conclusion “ was formed, and the extent to which it will affect his action; “ and if the court is not satisfied from such examination that “ he is impartial, the juror shall be discharged.” (Paschal’s Digest, Article 3041.)
“ The court is the judge, after proper examination, of the “ qualification of a juror.” (Paschal’s Digest, Article 3044.)
The said juror having answered the above question in the negative, and being further examined, he said “ that [ie had “ read the report of the evidence in the case of The State -u. A. “ J. Walker, that he had formed an opinion thereon as to the
By a recurrence to the above quoted provisions of the Code, it will be seen that the object of the further examination is to ascertain first, that the juror has formed in his mind a conclusion ; second, the source from which it was formed, and third, the extent to which it will affect his action. When the question is first asked the juror, he is made the judge of the extent to which the conclusion that he has formed will influence his action. But when he is further examined, the court becomes the judge of the extent to which it will influence his action, and this must be determined by the nature of his conelusion, as ascertained from what the juror says in answer to the questions. A slight, merely general impression, derived from hearsay or floating rumor, may be denominated a conelusion which might not ordinarily be a disqualification. For it is implied in the shape of the first question as above quoted, that the juror may have some sort of a conclusion, founded on hearsay or otherwise, which would not disqualify him. A general opinion formed without any particular examination into the facts, and derived from a source in which the juror placed no great reliance, might be denominated a conclusion, and still it might generally not disqualify the juror.
On the other, hand, a satisfactory conclusion, from hearing and carefully, considering the evidence, would certainly disqualify the juror. In this case, the juror had read the report of the evidence in the Walker'case—Walker and the defendant being charged with the commission of the same offense, in the same indictment. The report referred to may be presumed to be the detail of the evidence at a former trial, as given in the newspapers of the city, which is usually published in cases exciting any general interest. He must have
The juror took his seat in the jury-box with a conclusion formed, when the defendant had not been heard, and without the benefit-óf the instruction of the court as to the law applicable to the case. If his conclusion was in favor of the prisoner’s guilt, it was as a weight put in the scale of justice before the trial commenced. Whatever of obstinacy of character and pride of opinion he possessed had to be overcome by other evidence. There are perhaps but few men who do not lean in favor of a preconceived opinion, founded on what they deem to be an authentic source. They look" favorably upon whatever will support it, and examine with increased caution whatever will oppose it. The love of consistency in the formation of their judgments requires this of them. Ho authority has been found for holding that this juror was qualified, and an abundance that is in opposition to it. (See Grayham & Waterman, New Trials, p. 377, and American authorities cited, 378, 379.) In the case of Monroe p. The State, cited in support of the ruling of the court below, the judge, before determining that the juror was qualified, satisfied himself by the answers to his questions, that the juror had really formed no conclusion as to the guilt or innocence of the prisoner. (23 Texas, 210.) Perhaps the general rule, as to the impartiality of a juror under our code cannot be better laid down than it was by Chief Justice Marshall, in the Burr case, which is as follows: “ Light impressions, which maybe supposed to “ yield to the testimony offered, which may leave the mind
We are of opinion that the court erred in overruling the motion for a new trial, upon the grounds that have been referred to, and therefore the judgment must be reversed and the cause remanded.
Reversed and remanded.