*1 necessary questions It is not the other consider presented they likely to arise on a because are not retrial. noted, judgment must
Because of errors above be reversed.
Judgment instructions to the trial reversed with appellant's court to for a trial. sustain motion new Landis, Emmert, JJ., J., concur. C. Achor Arterburn, J., concurs result.
Note.—Reported in
Johnston Indiana. 29,677. Filed December [No. 1958.] *2 Covington, Barn- Keith E. Clemence, of E. Robert McCabe, Williamsport, L. hart, Edward of Attica and appellant. for Steers, Attorney General,
Edwin K. and Merl M. Wall, Attorney General, appellee. Assistant for Appellant was
Bobbitt, convicted of murder J. degree 148, §1, the first p. under Acts ch. being §10-3401, Replacement, Burns’ tried jury, guilty charged found sentenced to death by electrocution. presented
The sole here concerns the fact Harvey, one Alice Leoma failed on the dire voir examination to that she disclose second of the cousin victim named in the indictment. undisputed evidence is that neither attorney
nor his such relationship knew of until “about he week before filed a motion new trial.” There parties no consent could serve. regardless
Appellant (1) juror’s asserts knowledge of such under the factual situ- *3 disqualfied, here she was and he ation was entitled to disqualification, because of such a new trial (2) her failure to her relationship disclose to the vic- constituted misconduct which is tim cause for a new 169, §282, p. 584, being under Acts trial ch. Replacement. §9-1903, 1956 Burns’ First: all “The construction of statutes of this by following rules, shall be state unless such plainly repugnant construction be to the intent of legislature or of the context of the same statute: person required “Eleventh. When to be dis- acting any question or indifferent in interested on affecting parties, consanguinity matter other or degree, affinity inclusive, by the sixth within rules, degree or within the law second civil cousin, inclusive, disqualify be deemed to shall acting, except by parties.” person from consent of 80 being §1-201, §1, p. 339, Burns’ ch. R. S. Replacement. not
It did here that because is asserted specifically not whether or she ask this was waived. to the victim related challenge, in notice of the without Failure not constitute a waiver under competency, does this section of statute. examination, Harvey was asked dire Mrs.
On the voir attorney: prosecuting “Q. you in person the other involved know Did this Foxworthy? incident, Mae Vida “A. No sir. Harvey, any
“Q. you time, Mrs. Do at this know jury, why if you not could sit reason so, upon render fair do called that were from the facts impartial verdict given you? I of. is none know “A. There question was also asked counsel similar [A defendant-appellant, like answer.] “Q. Harvey, you past any- Mrs. have read thing about this case? knowledge, my “A. To when this case first—when reading happened, I an this first recall account paper. “Q. just passing it You read news item? “A. Yes.” Harvey questioned by appellant’s attorney
Mrs. as follows:
“Q. You did know victim in this case? *4 “A. No.
“Q. you by any family? Did chance know the No, “A. Sir.
“Q. you personally acquainted are by And not or
acquaintance any familiar persons of the in this action? “A. No.”
Where, here, Legislature has, as within the limits power,
of their declared who shall not be com petent binding jurors, upon it is the courts. Block v. 361, The State 357, 100 Ind. 362. Hudspeth al. et 133, Herston 64 Ind. court, the trial jury before the was sworn to case, following decide the question: asked the you related, “Are either by marriage, of blood or parties to either of the to this suit?” juror—Lewis nega One A. Baker—answered in developed tive. It jury after the had returned a ver dict, that Baker appellee was related to the degree prohibited by within the Baker, statute.1 affidavit, in an stated that when he was exam dire, on voir he did not know ined that he was related appellee to the but fact had to since come his knowledge. pages 135,136 At of 64 this Ind. court said: think, said, “It can not be we under the facts by case, appel- shown affidavits this that the by lants consented the trial of this action they appellee, cousin when did know such be until after the Nor it trial. can correctly said, appellants have waived objection rela- on account they per- appellee, not, juror
tionship to the did because counsel, sonally his examine the their appellee. relationship to the We as to his oath that, matter, clearly opinion, as to are rely implicitly, appellants with- had the upon examination, the answer further out question propounded himto court. feeing §1-201, 17, §1, p. Burns’ 1946 ch. 1. R. S. Replacement. *5 us, also, alleged by “It seems to that the fact affidavit, that, the in his at the time of the trial, ignorant wholly any relationship he was of appellee, possible between him and the can have no bearing under legal right on the correct decision the of now appellants had a clear consideration. The their have case tried disinter- jury. law, juror, Baker, ested Under was competent juror; but, negli- not a gence ance of his without fault or appellants, ignor- part on the in of incompetency, they accepted him as a juror. they As soon as were informed appellants juror’s incompetency, moved the cause, ground, court, of this that for a new trial on overruled.” but the motion was exactly the in that situation It seems to us this is nothing has been shown case at bar and change ably rule which cause us to so would Herston, supra. Hudspeth in et al. stated recognize ac- the Herston was civil We Case only applies tion, but, when if the rule therein stated rights involved, certainly apply property are it should life is at stake. force when a man’s with intensified wholly disqualified opinion was In our jury which a member of the under the statute1 sit as appellant. tried hearing the motion
Second: The evidence at the juror, Alice Leoma for a new trial discloses prior trial of Harvey, present a short time was Riley grandmother, her Jane in the home of victim, Mae Fox- Barker, aunt who was an Vida obituary prepared. worthy, Barker’s Mrs. when testified, obituary per- person wrote who part, tinent as follows: making
“Q. you prepara- I stated believe obituary, that the relation of tion of that family was discussed? you obituary—. Well, yes, when write an “A. “Q. Yes? Yes,
“A. that. we discussed mother, “Q. you your I Mrs. And stated believe Harvey yourself were Mrs. Clark and present? right. “A. That naming Barker,
“Q. this here And in the made of mention Mrs. Jane Vida Foxworthy? Mae Yes, if she would talked wondered “A. we every- And talked about at the funeral. we *6 body in a social visit. mother, your “Q. presence of in that was And Harvey yourself? Clark, and Mrs. Mrs. discussion, right. is Yes, family sir, just a “A. at your “Q. recollection But as to best your in kitchen Harvey in the Alice was time Foxworthy Mae name of presence, Vida mentioned? was Yes, Sir, it was.
“A. court.) (Re-direct by the examination “Q. that time? at the conversation Just what was substance, Wyde? you Mrs. relate it in Can wondering— talking Well, and “A. we were “Q. Who? my Clark, Harvey mother were
“A. Mrs. Mrs. talking, going others were in out. We talking obituary wondered were if about this got Wayne Wayne was word. Babb had at a distance. And He lived cousin of mine. the funeral. be to if would Vida we wondered You is, they family if discussion how know min- just a few present. It lasted would utes.” juror— that she and further testified This witness trial; she appellant’s Harvey’s mother, visited Harvey, her “in the and saw spoke Mrs. jury box.” Harvey,
Alice Leoma at the hear- testified ing, part, in as follows:
“Q. you And when read the matter of death of Foxworthy Yida Mae newspaper, bring to anything did not mind of a relation- ship? No, Sir, just “A. me it was another news item. “Q. you you And did did the matter discuss your parents? the news item with I “A. did not.
"Q. you Did you at time inform them was jury? member “A. I did.
“Q. At what time relation the time the trial going on? they “A. After the It were trial started. was when selecting jury; when I to be se- was called lected, baby my I left mother because day up. I come “Q. selecting just they That when were jury? Yes, “A. Sir.
“Q. you your Do know whether or not mother during here in the room the trial? court “A. She was not. cross-examination, questions On in answer to *7 defendant, Attorney Barnhart, for Keith E.
the witness testified as follows: sitting “Q. your you You mother were did inform as a this case? Yes, “A. I did.
“Q. you your And in fact left child there ex- plained why you leaving to her were ? child day “A. only first time.
“Q. That was before the trial started? Yes, day up I
“A. was first was here. “Q. you anyone And not did case with discuss this during the trial ? No, . Sir, “A. I not.” did
85 In State, supra Block (1885), 357, v. The 100 Ind. judgment jurors was reversed because one of the incompetent and this fact did not come to the knowledge until after trial.
In Rhodes 189, v. The State 128 Ind. 27 N. E. 866, Rep. 429, 25 Am. trial, St. after one of the jurors made eyesight affidavit that his was so defective distinguish that he not could one the witnesses another, from see face of the defendant. In re versing judgment, court, 197, this page at said: negligent, he, “The accused was counsel, fully jurors quali- examined toas their
fications. The answers of the are his cate that his of whom we suspicion were as to disarm speaking disqualification, nothing and there was to indi- eyesight was defective.” 277, In v. The 155 State Ind. 58 N. E. Gaff 235, 74, Rep. discovered, 80 it Am. St. after trial conviction, jurors two of deputy were reversing judgment court, pages sheriffs. at 278-279, said: deputy “These sheriffs would doubtless have been
rejected by challenge the court on for cause if the Appellant known. facts had been made bound was not anticipate talesmen would be called among deputies, from and these men sheriff’s gen- have disclosed on the should eral examination competency. their Block v. 357; State, Rhodes 100 Ind. v. 128 Ind. 866], 25 Am. 429.” N. E. St. [27 jurors a voir dire The reasons for examination of ably response duty their thereto are stated in Michigan Pearcy Mutual Insurance Com- Life 61, 62, pages pany (1887), 111 at E. Ind. N. Rep. 673, as follows: Am. St. *8 juror “The on his voir examination of a dire has namely, purpose, a to ascertain whether two-fold challenge exists, a for to ascer cause expedient is to exer tain whether it wise and challenge given right peremptory cise important parties by to It is a law. often party a the relation sustained should know adversary, person that he juror called as a to his order cause, challenge may interpose a for right challenge. It peremptory to is exercise his juror duty and truthful an to make full the swers him, neither questions as are asked to stating concealing any mate falsely nor fact knowledge of matter, all since full rial material to fair and is essential and relevant matters challenge per right either just to exercise juror falsely misrep conceals A emptorily cause. who or for situation, or a ma interest or his resents controversy, guilty is fact relevant to terial misconduct, prejudicial misconduct and such challenge.” right impairs party, it his 324, 180 N. (1932), 203 Ind. E. In Foreman v. State “No” juror examination answered voir dire Rickert, .the you question: know Charles “Do to the on-the south janitor Reformed Church of the German attempting appellant was appears It side?” acquainted with' the jury who were to obtain a juror’s-'an- The prosecuting Rickert. witness Charles him question propounded accepted swer to nothing appellant truthful, and knew as correct contrary jury until after had its returned had not used more verdict. than five peremptory challenges, and asserted thát had question truthfully, he would answered the have exer- peremptory challenge. aof cised that at the time he admitted answered the person that a “he did know the name of Rickert was janitor employed at German Reformed Church Huntington, Indiana, but did not know him as Charles Rickert, personal acquaintance him; *9 and had no he had seen Rickert about the at church times passed going when he the church from his home to the part city Huntington; the business of of his first knowledge given of Riekert’s name was after affiant appeared was selected as a and Rickert as a witness; give he testimony did not the of wit- ness along undue credence it but considered with all ‘gave of the other evidence weight and it such he as ” thought page it was entitled to.’ Ind., At 330 of 203 this court said: juror’s “. . a. to failure make full and truthful questions answers to asked him on his voir dire concerning
examination parties relation the to litigant ested in duct, reason directly or indirectly to others inter- the litigation, outcome the is miscon- regarded prejudicial and will be as for the impairs right it parties challenge.” Citing authorities. repeatedly by It has been held this court that if general question “fairly on voir dire examination juror’s
arouses the attention directs it to desired, enough the information it without specific covering questions phases minute subject.” Pearcy Michigan v. The Mutual Life Company, supra Insurance 59, 62, 111 Ind. Rep. 12 N. E. 60 Am. St. 673. defendant-appellant any negli- guilty not was
gence discovering juror’s in not sooner the fact of the relationship to the victim. presume
Appellant Harvey had that Mrs. competent obliga he was was under no anticipate objections possible
tion to he unless suppose some had notice or reason to that such existed. Rice The State 16 Ind. 300. being by not
Appellant that she did told case; not know in the that she did know the victim by prosecuting family; to a answer why attorney, reason she could that she knew no impartial jury, a fair and and render not sit go verdict, required ask further and he specifically were related victim within if she degree, prohibited statute. fifth Harvey relationship to the victim knew of her If Mrs. duty, jury she reported and when the time she at victim, family of she she knew asked if at that with the in- time come forward should have relationship. concerning such formation Harvey the voir dire exam- was asked on Mrs. When *10 why any reason she could not knew of if she ination duty juror, to her it her state sit a was as right failing so, and, appellant had a to do to the victim none. rely there was upon her answer to Harvey— juror—Alice Leoma opinion the our prejudicial guilty which was of misconduct was deprived him of chal- it appellant because lenge for cause. foregoing judgment the must be reasons
For reversed.
Judgment with the trial reversed instructions grant for a appellant’s motion new trial. court to Emmert, J., J., concur. Landis, C. J., separate opinion.
Achor, concurs with J., opinion. separate result Arterburn, in with concurs Opinion
Concurring Arterburn, In thiscase on the voir dire J. examina juror, Harvey, jury Alice was of the asked if tion acquainted victim involved was she being persons case tried or knew of the in the appellant case. She answered “no”. The thereafter showed that she was a first cousin once of removed of the victim the no homicide. There evidence that is actually relationship, although she knew this there is some present evidence that she was a time an at when obituary prepared family upon in the the death person of another and the name of the murdered victim living, who then court, was listed therein. The trial however, against appellant upon found the issue having Harvey, any knowledge of such relationship. accept We must findings court’s respect. fact purpose give of a voir dire examination is to opportunity inquire into the interests juror.
aof It part law that a failure on the questions concerning the defendant qualifi- to ask jurors objections upon cations of ais waiver of ground. otherwise, might itWere a defendant intentionally jurors questioning specific avoid quali- fications, knowing might well disquali- there be some existing, fications then await outcome case adverse, thereupon disqualifications if use as grounds for a new trial. law cannot be trifled with reasonably specific in that A failure to fashion. make juror’s qualification inquiry to a would waiver any objections on that account. *11 question The here no doubt have been more could However, any specific relationship. as to a reasonable required. interpretation It of this is seems to me rule any the ac- as to whether has family per- the of quaintance with or knows a certain any comprehends son, reasonably relationship with such answer, although honestly therefore, the person. I, feel given by juror, defendant-appellant the the misled qualifications examination to the juror. as the of
Concurring Opinion Appellant was degree of convicted first Aohor, J. by jury murder and sentenced on November punishment by the Fountain suffer Circuit Court to death. the evidence at the trial is not tran- included sufficiency
script presented and no of issue as the the evidence sustain conviction. questions grounds for trial asserted as new presented by argued appeal here are
and causes Harvey, jurors, one Alice Leoma fact that of (1) on voir dire examination failed her to disclose fam- victim or the acquainted the murder she was with ily (2) first cousin once re- was in fact a that she victim. of the murder moved first, that failure to disclose Appellant asserts victim murder acquaintance of her fact pre tending misconduct, family constituted and the case, of which is due consideration vent a fair and §9-1903, Burns’ the terms trial within for new cause Repl.1 fact of Secondly, appellant asserts deceased, relationship of the proven knowledge regardless of such and, juror, there- disqualified part trial as a matter new entitled to a fore, appellant was right. for the grant trial to the defendant new shall court 1. “The any following causes, or of them: jury guilty misconduct has been “Fourth. When prevent tending of the case.” fair due consideration Repl. 169, §282, p. 584.] ch. §9-1903, Burns’ 1956 [Acts *12 I opinion am of the that the case must be reversed because of the facts trial, stated in the motion for new upon but not theory appellant’s argument of as my opinion stated above. In the fact of this erroneous answer in itself constituted cause for new trial. Ac- quaintance family with the murder victim or her was going matter to partiality juror. of the
Appellant by impartial was entitled to jury.2 trial an guarantee In order right to appellant was entitled to questions juror truthful to answers asked dire, going voir important question. to this There fore, upon juror truthfully failure of to answer such questions an accused is to entitled relief from a verdict actually which by partiality is bias, influenced or by specific provisions presumed which of the statute are to have been so influenced. juror specifically interrogated this case the
regarding acquaintance her or with the murder victim family. By testimony, although her ap- own she parently identify did not victim murder her name, acquainted married family,” she was “with the family. her and knew of to Her answer although honest, negative, in the erroneous. How- ever, protected challenge appellant has juror asking regarding partiality her ac- quaintance family. majority opinion appellant
I do concur in ground trial, either on the was entitled to new proof relationship, misconduct grounds trial a matter itself, for new constituted of law. alleged mis- issue as
Let us consider first the
asserts tended
which
conduct of
Indiana,
§13,
6, Constitution
Amend.
2. Art.
Constitution
States.
of the United
prevent
There
no
a fair consideration of
case.
juror knowingly
false answers
if a
makes
to make full
on voir dire
or fails
examination
complete
questions in matters
related to
answers
juror’s impartiality,
will be
such misconduct
cause
*13
(1880),
Lamphier
Ind.
v. The State
70
for new trial.
In
Pearcy
Michigan
317,
The
Mutual
321.
Life
Cf.
v.
98,
59,
E.
60
Company (1887),
12 N.
111 Ind.
surance
324,
(1932),
Ind.
Rep. 673;
203
Foreman v. State
Am.
(1913),
also,
E.
Ohlwine v.
180 N.
291. See
52
Pfaffman
(1951),
777;
357,
v. State
App.
Ind.
100 N. E.
Sturrock
161,
229 Ind.
However, juror’s testimony in the case the before us hearing on voir dire and at the the for on motion new unequivocal acquainted trial that she was family. Admittedly, the or the deceased there was some evidence from other witnesses that circumstances had juror might out of the become ac existed which have victim, quainted or her with the deceased associated family of her with whom she was ac with members certainty quainted. However,, it cannot be said with support the fact of that did more than this evidence knowledge. opportunity The that an for most such there was a conflict in evidence could be said is that regarding juror voir full honest answers of and fact presented a dire examination. This Holloway v. State court to determine. for the trial (1878), 554; McCulley The State (1876), 53 Ind. v. 56; 428; (1878), 64 Achey Ind. v. State 62 Ind. 856; 502, (1885), 1 N. E. 102 Ind. The State Walker v. E. Stephenson 110 Ind. N. 216; 142 Ind. Rep. Smith v. State 59 Am. E. 595. 41 N. considering court, by deny- all evidence After trial, juror ing motion new concluded not, fact, acquainted with the deceased victim “guilty tending she was not misconduct prevent a fair and due consideration of case.” supra.] [§9-1903, The action lower court will not be reversed this court reason of these cir- supra. State, cumstances. Smith v. question presented
The second is whether subsequently is entitled to a new trial because of the relationship established deceased though victim, even was unknown to juror at the time of the trial. In order that mere juror, may relationship, not known constitute law, disqualification cause for matter of dis- origin either qualification must find its within some statutory constitutional declaration.
Specific provisions constitutional within the state regarding qualifications constitutions federal juror merely provide “impartial.”3 of a that the *14 knowing relationship victim, of her to the murder Not juror be a it cannot said as fact was biased grounds Therefore, relationship. of that because juror a disqualifying the as matter of law must be explicit provisions. these constitutional
found outside grounds that such exist in the Appellant contends implement the to above constitutional statutes enacted guarantee. pertinent appellant which relies The statutes upon follows: are as person required is to “Eleventh. When be dis- acting any question in or indifferent
interested affecting consanguinity parties, other or or matter degree, inclusive, by the affinity the sixth within degree rules, of second or within civil law inclusive, disqualify shall deemed to cousin, be 6, Indiana, §13, 1, Constitution Constitution of Amend. Art. 3. States, supra. the United 94 person such acting, by except from consent of
parties.”
[§1-201,
Repl.]
Burns’ 1946
R. S.
[2
1852,
17, §1, p.
ch.
339.]
following
good
“The
challenge
shall be
causes for
any person
to
juror
called
aas
criminal trial:
“Fourth. That he is related
fifth
within the
de-
gree
person alleged
to
injured
to
or at-
be
tempted
injured, by
to be
charged,
the offense
toor
person
complaint
prosecution
on whose
instituted, or
[§9-1504,
to the defendant.”
Burns’
Repl.]
1905,
1956
169, §230, p.
[Acts
ch.
584.]
A decision
upon
in this case must rest
the construction
applied
of said statutes as
to the facts before us.
support
of his contention that the
juror disqualified
law,
her as a matter of
holding
cites numerous decisions of this court
regarding
questions
if
makes false answers
competency
incompetency
his
in matters which are
impartiality
statute considered to affect his
as a
incompetent
such
will
treated as
and a
though
ordered, even
such
new trial
false answers are
al. v.
honestly
Hudspeth
innocently
made.
et
Her-
v.
133;
(1878),
(1861),
Rice
64 Ind.
State
ston
v.
(1884),
Block
100 Ind.
Furthermore, support position, appellant in of his upon Hudspeth Herston, supra relies the case of et al. Ind. In it [64 was discovered after case 133]. jurors trial that appellee one the of was related to degree. There, here, within the sixth as was ignorant relationship. of his that case court following language, upon used the which relies: “. . . the fact . . . . .. wholly was
ignorant any relationship between him and the on the appellee, bearing possible can have no correct decision now under con- appellants legal right sideration. The had a clear to Under tent jury. have their case tried disinterested law, juror, Baker, compe- not a juror; but, negligence fault or without part ignorance appellants, of the incompetency, they accepted juror. . . .” him aas law, good The above statement of law is still applied Every to the facts in that case. accused was jury,” pro entitled to “disinterested and the law safeguards may vides extensive to which an accused against protect jurors incompetent himself who are statement, impartiality. However, because of their law, Baker, juror, competent “under the not a juror,” light must be facts considered previous in that case and the as stated in the law prospective all the decisions of the court. In that case jurors expressly interrogated by the court as to were parties, their in each negative. cluding previous Baker, answered in the construing [§1-201, court the statute decisions object supra}, party’s that a to a had held *16 96
juror grounds partiality, including the fact of relationship, affirmatively his must be exercised and rights party’s that a “with unless failure to assert negligence” part, to exercise out fault or on his failure right Accordingly the constituted a waiver thereof.4 case, supra court, Hudspeth the in the Ind. [64 recognized 135-136], that waiver was an issue proceeded explain pre decision under the facts to its sented, as follows: said, “It . . . under the . . . can not be facts appellants to the trial of this consented by appellee, can action it a of the ... Nor cousin correctly said, appellants that the have waived be appellants objection . The had . . to right rely implicitly, to without further juror examination, upon to the answer of (Our propounded by to him the court.” italics.) case, supra, at are Hudspeth bar case
The constituting regarding distinguishable clearly the facts appellant. the case at part of the In on the waiver only her bar, interrogation went to of the knowledge acquaintanceship de- or actual purport family. or It did not her ceased victim incompetency be- statutory question of her cover the relationship. cause not, by controlling as contended do
The statutes disqualify as a matter absolutely appellant, relationship to the deceased of his because of law supra, provided statute, §1-201, early victim. degree, affinity “consanguinity within sixth per- disqualify such inclusive, deemed . . . be shall juror], except acting consent from [as son 63; Estep al. et (1885), v v. The State 7 Ind. 4. Romaine 140; Croy (1869), (1873), 32 v. State et al. 45 Ind. Waterous 122; v. Barlow v. Dunn 384; Ind. Alexander Ind. 114. 2 Blackf. parties.” (Our italics.) construing this and similar Hudspeth statutes this court both before5 after6 the 6and case, supra, right challenge has held that self-exercising, affirmatively cause is but be must timely exercised, failing and that statute, §9-1504, supra, considered waived. The later subsequent enacted to the decisions in footnote must placed considered to have affirmed the construction supra, stating upon statute, §1-201, the earlier challenge.” was one “causes for *17 challenge generally affirmatively for must Causes exercised are considered waived. this case the interrogate juror subject did not on the Therefore, relationship the murder of her victim. challenge juror must for we consider specific was waived. reason great weight of position conforms with the This general jurisdictions. upon The rule authority other S., subject as follows in 28 C. J. been stated has §1446, p. 1174: ground a new trial general not alone “In it is . . . that, accused, related unknown to killed,7 charged to have person
to the
accused is
he
especially . . . where
applies
. . The rule
.
diligence to discover
reasonable
failed to exercise
the
;8
relationship
. . .”
Estep
supra;
et
State,
et al. v. Waterous
Romaine v. 5.
Dunn, supra; Bar
supra;
supra; Crop
State,
al.,
low v.
Alexander
v.
v.
supra.
State,
907;
397, 42 N. E.
(1896),
Ind.
The State
144
6. Douthitt v.
Hodges v.
(1880),
341.
also
Ind.
See
The State
70
Patterson v.
494,
692.
(1885),
E.
Bales
Ind.
1 N.
102
453;
Per
631,
(1949),
223
2d
Mo.
S. W.
v. Scott
359
7. State
672;
399,
State v.
(1931),
46
2d
S. W.
120 Tex. Cr.
kins v. State
Carricut
Traviss v. Common
140,
98;
(1924),
102 So.
157 La.
(1884),
In other it has been held that failure regarding examine a on voir dire constitutes diligence failure to exercise due within general the above general rule.9 In fact the rule seems now to be relationship, that a though even within the degree prohibited by statute, which is unknown to the juror, not, standing ground alone, for a new trial.10 The reason though for the rule is that a related deceased, ignorant fact, if of that could not be biased, influenced or nor preju could the accused be thereby.11 diced
NOTE.—Reported in
McCoy City et al. v. etc. et al. Evansville 29,705. Filed December
[No.
1958.]
582;
(1938),
App.
45 P. 2d
186
9. Edwards v. State
28 Ala.
So.
People
334, certiorari
v. McNabb
2d
State
Cal.
People
California,
dismissed, McNabb
296 U. S.
660;
478;
Couch v. Commonwealth
2d
State v.
S. W.
36 N. E.
*18
Figuli
Carricut,
supra;
19, App.
(1938),
2d
State v.
495,
920;
(1935),
dism’d 134 Ohio St.
17 N. E. 2d
Hill v. State
451,
129 Tex. Cr.
87 S.
2dW.
719.
People
899;
(1903),
210,
10.
v. Boren
139 Cal.
72 P.
State v.
474,
Hodges
(1932),
663;
(1885),
Fox
52 Idaho
16 P. 2d
v. Bales
692;
494,
(1953)
(Ky.),
102 Ind.
1
E.
v.
N.
Jones
Commonwealth
520;
610,
(1912),
256 S. W. 2d
v.
102 Miss.
State
59
Brumfield
849;
(1932),
675,
92;
So.
State v. Miller
331
56
2d
Mo.
S. W.
(1918),
731,
171;
State v. Cooke
176 N. C.
97 S. E.
Traviss v.
(1884),
supra;
597,
Commonwealth
106 Pa.
State v. Mouzon
(1928),
C. 196,
799, supra;
Worthington
148 S.
145
State
S. E.
(1930),
449,
109 W. Va.
155
E.S.
313.
(1924),
Ky. 437,
11. Miller v. Commonwealth
203
262 S. W.
579;
(1922),
936;
State v. Stewart
296 Mo.
246
State v.
W.
S.
(1932),
92;
Miller
wealth
331 Mo.
2d
S. W.
Traviss v. Common
597, supra; Rogers
106 Pa.
v. Tex. Cr.