Cambron v. State
137 S.E. 780
Ga.
1927
Check Treatment
Russell, C. J.

A was jointly indicted with B for murder, and, as appears from the statement of facts in the second question, they elected to sever and the State chose to first place A on trial. “He waived formal arraignment and pleaded not guilty. *113A jury was selected and sworn and several witnesses had testified for the State when оne of the jurors announced to the court that his wife was a first cousin to B.” TJpon this, in some way not disclosed, by the first question propounded by the Court of Appeals, an issue of law was presented to the cоurt as to whether a person whose wife is the first cousin to one jointly indicted for murder. with the person then оn trial is competent as a juror in the case. We are of the opinion that the question should be аnswered in the negative. We have been unable to find a case in the decisions of this court upon the precise point presented by this particular instance, but upon principle ‍​​​‌​‌‌‌​​‌​​​‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌​‌​​‌​‌‌‍it is clear that the court can not fail to take judicial notice of such motives or natural interest in the result of a triаl as will affect the great rank and file of humanity and deprive a party of a jury composed of men omni exceptione majores. If the law may presume, as it does, that a person whose wife is a first cousin of B is for that reason incompetent to participate as a trior in passing upon the guilt or innocence of B, must not the judicial knowledge of the court go to the extent that the juror, mindful of thе fate of B as a natural result of the trial of A, will feel an undue interest in the acquittal of A? We think so; and as laid down by Chief Justice Jackson in Ledford v. State, 75 Ga. 856, 858, in holding that a kinsman of the prosecutor will be disqualified though the State is the pаrty, “It would be too dangerous a precedent to allow the juror to assert that he was ignorant of the relationship till after trial, too. The principle on which the law rejects him is that he is not impartial; thе same objection lies to his assertion that he was ignorant of the relationship at the time of the trial, after he had assisted in the conviction.-” As said by the writer in Temples v. Central of Ga. Ry. Co., 15 Ga. App. 115, 119 (82 S. E. 777): “Running through the entire fabric 'of our Georgia decisiоns is a thread which plainly indicates that the broad general principle intended to be appliеd in every case is that each juror shall be so free from either prejudice or bias as to guarаntee the inviolability of an impartial trial. ‍​​​‌​‌‌‌​​‌​​​‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌​‌​​‌​‌‌‍. . As we see it, the cardinal underlying principle in every adjudication in Georgia in which a juror has been held to be incompetent is that upon the discovery of faсts which, without dispute, or in the court’s judgment if there is conflict in the evidence, evince good reasons for interest *114or bias in the case, the court will take judicial knowledge of the fact that in all human probability the influence disclosed would operate upon a juror and move him to act in accord therewith. . . When, according to universal human experience, the inherent probabilities of the circumstаnces by which the juror is environed and to the influence of which he is to be subjected compel the сonclusion, in accord with the court’s judicial knowledge, that the juror will naturally be affected by his interest, it can not be held, as a matter of law, that the juror will contribute to, or is qualified to sit in, an impartial trial as guаranteed by the constitution, certainly not if the requirement that jurors be omni exceptione majorеs extends to debar jurors when there is a suspicion or ground for suspicion, as has several times been held by the Supreme Court. In the interest of fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of tlio jurors, rather than in a too-technical observance of the letter of cases previously adjudicated and an attempt to bring the facts of other cases within some pаrticular ruling.”

In our sister States of Mississippi and Alabama the precise ‍​​​‌​‌‌‌​​‌​​​‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌​‌​​‌​‌‌‍points now before us have beеn squarely decided. In Smith v. State, 61 Miss. 754, it was held that the court properly set aside a juror in a criminal case who was a cousin of one indicted for the same offense as the defendant. In Thomas v. State, 133 Ala. 139 (32 So. 250), the Supreme Court of Alabama held: “Under Code, § 5016, declaring thаt a juror may be challenged for cause if he is related within certain degrees to 'the defendant, or with the prosecutor, or the person alleged to be injured,’ a juror ‍​​​‌​‌‌‌​​‌​​​‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌​‌​​‌​‌‌‍who was not related to defеndant, but was related to a person awaiting trial under a separate indictment for complicity in the same murder, was subject to challenge for cause.” In Moore v. State, 146 Ala. 687 (40 So. 345), the Supreme Court of Alabama ruled that "A .juror is subject to challenge for cause on the ground of relationship to one jointly indicted with dеfendant for murder, though the relative of the juror is not on trial.” These rulings all go back to the original principles so often enunciated by this court that the court is bound to take judicial notice of universal, evеr-present motives of human interest which may be presumed to be generally, if not universally, operativе. For this reason, the court properly held that the juror whose wife was a first cousin to *115B, who was to be tried for the same murder, was not such an impartial ‍​​​‌​‌‌‌​​‌​​​‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌​‌​​‌​‌‌‍juror in the trial of A as the prosecution was entitled to have.

The second headnote does not require elaboration.

All the Justices concur.