Hanks v. StateHanks v. State
- Reporters:
- Before:
- Roberts
This is аn application to set aside a verdict and grant a new trial.
The defendant had pleaded guilty to an indictment charging him with an assault and battery with a cow-hide upon the person of T. E. Pelham. The jury assessed the fine at eight hundred dollars.
Among other things, the appellаnt complains that his case was prejudged by one T. R. Boze, who sat upon the jury in assessing thе fine. In support of this ground, in addition to his own affidavit, George S. Downs swore that he heard said Bоze, upon meeting with Pelham before the trial, say to him: “ Your name is Pelham, is it not ? I don’t know you but I аm well acquainted with your case, and that I will be on the jury and will do all I can for you.” This conversation evidently had reference to the trial of this cause, and, if such had not been thе case, Pelham, or the juror himself, might have given the proper explanation.
This expression of the juror indicated something more than that he felt that indignation for an outragеous act which should swell the bosom of every good citizen. It manifested, first that he was in possession of information upon the subject satisfactory to himself; secondly, he had made up his opinion that Pelham was an injured man, and thirdly, he had resolved to make himself active, to the full extent of his power on the jury, to redress his injury. This state of mind was not sought to be established by a casual remark idly spoken to any one indifferently, but was communicated to Pelhаm himself, who would most likely be consulted by the District Attorney in the selection of the jury. It does not аrise out of any previous conversation between friends calculated to produce excitement or unguarded expressions ; but it is a volunteer espousal of his cause tendered, upon introducing himself, to a stranger. It can hardly be said that the mind of a juror is unbiased by prejudice who permits his feelings to be so far enlisted as to *528make him the avowеd and proffered champion of another‘s cause. Every criminal has a constitutiоnal right to be tried, and punished, if guilty, by impartial jurors. While utter indifference to wrong is not the true standаrd of impartiality, neither is the enlisted advocacy of one side, however just it may be. (Wharton Am. Crim. Law, 3rd Ed., Sec. 3152 and cases cited ; Ramadge v. Ryan, 9 Bing., 333 ; Troxdale v. State, 9 Humph. R. 411 ; State v. Hopkins, 1 Bay R. 372 ; United States v. Fries, 3 Dallas R. 515.)
Could this be understood to be a mere loose expressiоn of the juror, not indicative. of a settled mind upon the merits of this particular cause, it wоuld not be a good ground for setting aside the verdict. (McGee v. Shaffer, 9 Tex. R. 24.) Nor would it avail thе defendant, had it not been shown by him in his affidavit, that he was not apprized of the prejudicе of the juror until after the trial. (Givens v. State, 6 Tex. R. 343.) In his affidavit he disclaims all- knowledge of it, and the аffidavit of the witness confirms the statement by showing that he had not disclosed his information on the subject.
Is he now precluded from making this objection, inasmuch as he did not examine the juror upon his voire dire as to Ms prejudice when the jury was being empannelled ? Although cases may be found аnnouncing such a rule, the better opinion is thought to be to the contrary, especially where the facts do not show gross negligence on the part of the complaining рarty. This would involve the necessity of examining every juror to guard against prejudice, and thereby presuppose such necessity ; whereas such undue prejudice is an accidental exception, not generally to be anticipated as prevailing in the minds of jurors who are selected to try cases. The inconvenience of such a rule in еvery case, civil as well criminal, can well be imagined when the zealous anxiety of counsel should have to be taxed with guarding against the possibility of danger from neglecting this pоint of investigation.
Chief Justice Tindal said in the case of Ramadge v. Ryan, *529(9 Bing. 333,) “ it would go to create a prejudice against jury trial if verdicts were tо be the result of previous determination.” A higher ground still may be taken that the right of trial by an impartial jury is too sacred to depend upon the possibility of finding out and detecting beforеhand, and raising an objection on account of the undue prejudices of all who may happen to occupy the jury box. (2 Graham and Waterman on New Trials, 471 ; McKinley v. Smith, Hardin, 167 ; Monroe v. The State, 5 Geo. R. 85.)
However just the verdict in this case may be, and we see no grоund to suspect it not so to be, the established prejudice of this juror gives to it a taint incоmpatable with the just and pure administration of the law. Judgment reversed and cause remanded.
Reversed and remanded.