85 Miss. 103 | Miss. | 1904
delivered the opinion of the court.
Two assignments of error are mainly relied upon in the effort to procure a reversal of the judgment and the awarding of a new trial herein. The first is based on the action of the court in impaneling the jury which tried the cause, and arises from the following circumstance: The court had examined upon their voir
The action of the court in refusing to complete the panel when the defendant had successfully challenged three jurors for
The next assignment of error, and the one most strongly pressed in brief and by oral argument, challenges the correctness of the ruling of the court in pronouncing certain jurors competent.
A thorough and painstaking examination of the record, in which we have read with great care the entire examination of every person called for jury service, and whose competency was passed on by the court, demonstrates that the only two instances in which the ruling of the court is subject to any degree of criticism, with any show of reason, was in holding J. J. Gillon and J. L. ■ McCormick to be competent jurors. The record shows that, of the twelve men who were peremptorily challenged by defendant, Gillon was the only one against whom a challenge for cause had been preferred. The record further
Was the juror McCormick competent? McCormick, on his vow dire, testified: That he had no bias, feeling, or prejudice against defendant’, and would try him' fairly and impartially on the evidence introduced, would return a verdict according to law and evidence, and had no other motive in going on the jury. He had heard of the case, and had seen it in the paper. Had heard the rumor, but had never heard any of the witnesses, and had never heard it talked in town. That he had an opinion from what he had heard, and “reckoned it would” require evidence to remove that opinion, but, although he had such opinion, he could give the defendant
Did the court err in holding Gillon to be a competent juror ?
At the threshold of this investigation we are met by the contention of the state that, under the facts of this record, appellant cannot be heard now to question the correctness of that ruling. It is said: Gillon was challenged out of time, when defendant was not called upon, and when, under the orderly and established practice, he had no right to exercise the power of peremptorily challenging; that the hasty challenging of the juror shows that it was a shrewd effort on the part of skillful counsel to irrevocably hold the court to a ruling which was con
Recurring :td the consideration of the competency of 'Gillon, we detail his voir dire examination: He had-no bias or prejudice,' ■ and would give a fair and impartial trial from the evidence. ■ Had heard nothing from any one who personally knew, -but 'had formed and expressed- an opinion from what he had seen in the papers, principally. This.opinion it would require •téstimony to remove, “hut testimony would remove'it.” Would 'go into the jury box “as free as I believe it is possible for a 'human mind to be.” That, while he could not obliterate his •opinion' except by going over the evidence, this would remove ■it, as his opinion was founded, not on testimony, but on hearsay, which he did not know was correct. That he could not
An examination of the former opinions of the court on this
Tbe examination of tbe proposed juror, Gillon, shows that be was a man of intelligence and information. TIis answers were full, and give no bint of lack of frankness or concealment of tbe truth. lie evinced no desire to be accepted as a juror, but expressed himself freely on every question propounded. He bad talked to no witness, nor to any one personally cognizant of tbe real facts, but, from.newspaper reports and from what be bad beard in casual conversation, be bad an opinion, which testimony would remove; and be announced bis ability to go into tbe jury box with a mind free of bias or prejudice. Ought tbe court to have excluded him, as being unable or unwilling to try tbe ease impartially ? In tbe case of Green v. State, 72 Miss., 522 (17 South., 381), where this court, through üooper, O. J., upholds tbe constitutionality of sec. 2355, supra, and makes a very full analysis of many cases bearing on tbe subject, tbe court says: “Tbe juror Mosely on bis voir clire stated that be lived in the immediate neighborhood where tbe crime was committed, and bad beard it dis
But it is said Gillon was disqualified by reason of his statement that he was prejudiced against the defense of insanity. Under the facts of this record, we think not. It must not be assumed that the question whether a proposed juror in a criminal case is prejudiced against or favorably inclined toward any particular defense is any test of his qualification for jury duty. The plea in a criminal case is “Not guilty,” and it is upon this plea alone that the case is submitted to the jury. Whether the defendant submits as his defense an alibi, insanity, self-defense, or any other, the question which the jury is called upon to decide is whether the defendant has been proven guilty by the evidence beyond all reasonable doubt. The true test of competency in this case was that applied by the last question asked Gillon: “Could you give the defendant the benefit of all reasonable doubt as to his guilt, whether that doubt was raised by the question of sanity or not?” And to that query a positive and affirmative answer was made. This fulfilled the requirement of the test. But even giving the rule the narrow construction contended for, it cannot avail the appellant. Appellant’s defense (if that can be called a defense which, supported' only by fragmentary and inconclusive testimony, draws its main strength from the force and ability with which it is presented by eminent counsel) was hereditary insanity or insanity superinduced by excessive cigarette smoking. As to insanity arising from either of these two specific sources, or if caused by. disease, the juror expressly stated that he was not prejudiced as a defense, but would give the defendant the benefit of every doubt as to his sanity. This was the utmost
None of the assignments of error are well taken. -Appellant had a fair trial, and, in view of the enormity of the crime, no other verdict could reasonably have been expected.
Affirmed.