Dennis v. State

44 So. 825 | Miss. | 1907

Mates, J.,

delivered the opinion in the case.

Louis Dennis was indicted in the second district of Hinds county for the murder of John White in the town of Raymond on the 25th day of February, 1905. Dennis was convicted and sentenced to be hanged. We do not deem it necessary to go at length into the discussion of the testimony, since the settlement of the case is to depend on the competency of the juror Calebro. It is a close question on the facts as to whether or not Dennis was guilty of the grave crime of murder.

On the motion for a new trial it was alleged that one Calebro, a juror who had tried the case, was incompetent because he was prejudiced against the defendant. It is also alleged in the motion that the juror Calebro had prejudged the case, that he had expressed it as his opinion that Dennis was guilty of the murder of John T. White, that John T. White was the best friend that he (Calebro) had ever hadj and that he would be willing to help hang him. It is stated in the motion for a new trial that Calebro made these statements before he was accepted as a juror, that neither the defendant nor his attorneys knew anything about it, and that the defense was entrapped into the acceptance of this juror. This motion is accompanied by the affidavit of Dennis himself, and the affidavit of all his attorneys, that they were ignorant of the matters set forth in their affidavit until long after Calebro had been accepted as a juror. In support of this motion counsel for Dennis introduced the testimony of Calebro when being examined by the court on his voir dire. In this examination he stated to the court that he knew nothing about the ease, that he had no desire to reach any verdict other than that to which the law and evidence would lead him, that he could give the defendant a fair and impartial trial, and that he had no doubt of his ability to do this. . The record shows that he was not asked, either by the court or counsel, whether he had previously formed or expressed an opinion about the case; but he was asked whether he knew anything about the case, and whether or not he could give the defendant a fair and impartial trial, and he gave satisfactory answers-to both questions, disclosing nothing that would unfit him for jury service at this trial. In further support of this motion, the defense introduced eight witnesses, all of whom testify, in substance, that long -before the trial of Dennis they had heard Calebro say that Dennis ought to be caught, that he had killed the best friend that he (Calebro) ever had, and that he could help hang him. It is further testified to that Calebro stated that, if he had anything to do with the case, Dennis should hang, and that -the man that killed John T. White ought to be hung; that he would like to sit on the Dennis jury, and, if he did, he would hang Dennis. The above shows the character of testimony introduced on behalf of Dennis to show the disqualification of Calebro. Calebro was introduced by the state, and denied that he had made any such statement as the witnesses had testified that- he had made, and there was an attempt by the state to break the force of the testimony introduced in support of the motion, by impeaching some of the witnesses; but we think that the testimony failed to do this. After hearing the motion and all the evidence, the learned circuit judge overruled the motion.

Counsel for the state contend that because the direct question was not asked Calebro, when being examined on his voir dire, as to whether or not he had formed or expressed an opinion as to the guilt or innocence of Dennis, therefore the right to object after verdict was waived. In support of this proposition counsel cite several cases. Waiving the question as to the application of these authorities to the case of the alleged disqualification, of a juror for reasons of incompetency which contravene a constitutional guaranty to the accused that he shall he tried by a fair and impartial jury, we say that the authorities cited by counsel in George’s case, 39 Miss., 570; William’s case, 37 Miss., 407, and Frank’s case, 39 Miss., 705, have no application, because the juror was asked those questions which are tantamount to being asked whether or not he had previously formed or expressed an opinion of the ease. If Calebro had said the things in reference to the trial and guilt of Dennis attributed to him by the witnesses introduced in support of the motion, he could not have answered the questions of the court truthfully without disclosing the fact that he was not impartial and that he had previously formed and expressed an opinion of a character that would have disqualified him both under the Constitution and statute. The court will be liberal in its interpretation of language used by a juror which tends to show bias, when the object is to show a juror disqualified on account of facts showing prejudice, to the end that an impartial jury may be secured. This court will not lightly interfere with the finding of fact made by the trial judge on a question such as is involved in this case. That it is the duty of the court to reverse the lower court in its finding of fact whenever it is satisfied that the lower court has erred in holding a juror competent, when this court is clearly of the opinion that he was not a competent juror, cannot be questioned. Jeffries v. State, 74 Miss., 675; 21 South., 526; Shepprie v. State, 79 Miss., 740; 31 South., 416.

The right to a trial by an impartial jury, when being prosecuted for crime, is secured by § 26, of the Constitution. No more sacred duty can devolve on any court than the duty of seeing to it that this provision of the Constitution receive a strict enforcement. In the light of this record, we are overwhelmed by the fact that Dennis did not get that trial by an impartial jury that was secured to him by the Constitution. We notice no other assignments of error in the record.

Reversed and remanded.