49 S.W. 90 | Tex. Crim. App. | 1899
Appellant was convicted of robbery, and his punishment assessed at imprisonment in the penitentiary for a term of nine years, and he prosecutes this appeal.
There is no statement of facts in the record, and appellant relies solely for a reversal of this case on alleged errors in the impanelment of the jury. It appears that W.R. Sewell, Willis Green, J.P. Smith, G.W. Hill, J.B. Johnson, John Clifford, Mac Griffin, and Joe Tatum were all members of the regular jury for the week, constituting a part of the panel for the trial of defendant. In testing the qualifications of said jurors on their voir dire, each of them stated that he had heard what purported to be the facts of the case on trial, and each stated he had formed an opinion as to the guilt or innocence of defendant, and that it would require evidence to change such opinion; that, if selected on the jury, they would take such opinion into the jury box; and that it would remain with them, in the absence of evidence to remove it. All of said jurors, with the exception of the juror Willis Green, stated that they had never talked with any witness in the case, and that their opinions were formed from hearsay, — from what they had heard and read, that such opinion would not influence them in the slightest degree in rendering a verdict, and that they could render a verdict solely on the evidence given on the trial. As to the juror Willis Green, he stated that he was a deputy sheriff, and that he had formed his opinion from having talked with the sheriff, J.T. Sanders, and his deputies, Thad Knox and Ben Clark, who were witnesses in the case. He stated, however, that the opinion he had formed would not influence him in rendering the verdict in the case, and that he would be governed solely by the evidence given on the stand by the witnesses, and the charge of the court. The bills of exception, in addition to the foregoing, show that appellant further proposed to test the jurors by asking them the following question: "Is it not a fact that you now believe, without any doubt in your mind, that the defendant is guilty as herein charged, and ought to be convicted?" Appellant expected to prove by each of said jurors that he had formed an opinion that the defendant was guilty. An objection to this question was sustained by the court. The bill shows that the court held all these *144 jurors qualified, and overruled appellant's challenge for cause to each of them. Defendant peremptorily challenged W.R. Sewell, Willis Green, and J.B. Johnson; but there was left on the list of said jurors, unchallenged, J.P. Smith, G.W. Hill, Mac Griffin, and Joe Tatum, who were sworn as jurors, and sat on the trial of said case. After the regular panel was exhausted, and only six jurors obtained, a number of tales-men, under the order of the court, were brought in, to he examined as jurors. Among them were J.C. Dibrell, W.J. Roby, and W.O. Garrett. They were examined on their voir dire as to their qualifications, and each stated that he had formed an opinion as to the guilt or innocence of defendant; that the opinion was formed from hearsay, on what purported to be the facts and circumstances of the attempted robbery of the express car, for which the defendant was being tried; that they had such opinion now; that it would require evidence to change the opinion so formed, but that they could give the defendant a fair and impartial trial, upon the law and evidence, without being at all influenced by the opinion which they had formed; that they had not talked with any witness in the case; that the opinion formed was from hearsay, and from reading accounts in the newspapers. Appellant also proposed to further test these jurors by asking them the same question heretofore stated with reference to the other jurors, as to the character of opinion formed; that is, it was proposed to show that they had formed an opinion that the defendant was guilty and ought to be punished. This, on objection, was not permitted by the court. Each of said jurors was challenged for cause, which overruled by the court. Appellant then insisted on challenging them peremptorily, but the court held that, including the jurors Sewell, Green, Johnson, and Clifford, heretofore challenged by defendant, he had already exhausted his ten peremptory challenges, and refused to permit him to exercise any other challenge; and said Dibrell, Roby, and Garrett, against the consent of appellant, were taken, and served on said jury. We have given in a condensed form the substance of the two bills of exception reserved by appellant on the impanelment of the jury, in order to properly present the questions raised on this subject.
A construction of subdivision 13 of article 673 of the Revised Code of Criminal Procedure has been made by this court a number of times, — notably, in the cases of Suit v. State, 30 Texas Criminal Appeals, 319; Shannon v. State, 34 Texas Criminal Reports, 6; Obenchain v. State, 35 Texas Criminal Reports, 490. And the construction which appears to have been given this subdivision of article 673 is to the effect that if the juror has formed an opinion, but he indicates by his answer that it will not influence him in finding a verdict, he may be further examined by the court, or under its sanction, as to how his conclusion was formed, and the extent to which it will affect his action; and if it appears to have been formed from reading newspaper accounts, communications, statements, or reports, or from mere rumor or hearsay, and if the juror states on oath that he feels able, notwithstanding such opinion, to render an *145 impartial verdict under the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case; but if the court, in its discretion, is not satisfied that he is impartial, he shall be discharged. This is in accord with the plain, literal reading of the statute. The provision in question seems to measure the extent of the investigation by the sources from which the juror may have formed his opinion; and the decisions draw a distinction between the formation of an opinion from mere hearsay, and an opinion derived from original sources, holding in the former case that the court may rightfully exercise its discretion.
From the bills of exception, it appears that all of the jurors, except Willis Green, are shown to have formed opinions as to the guilt or innocence of appellant at second hand; that is, from rumor or reading newspaper accounts of the same. The juror Green, however, is shown to have formed his opinion from having talked with the witnesses in the case. He was himself a deputy sheriff, and formed his opinion from having talked with the sheriff and two other deputies. We take it from this that he formed his opinion from original sources, and not from hearsay. True, he did not sit in the case, but appellant was compelled to exhaust a peremptory challenge on him. We hold that he was disqualified to sit as a juror in the case, and that the court erred in holding him qualified, and that by the court's action appellant was deprived of one of his peremptory challenges. He exhausted his peremptory challenges, and, as appears from the record, three other jurors, who had formed opinions as to the guilt or innocence of defendant, but who stated that such opinions were formed from hearsay, and that they could try the accused fairly and impartially notwithstanding such opinions, over his objections were pronounced qualified jurors by the court, and tendered to defendant. He proposed to use his peremptory challenges as to these, but the court held that he had already exhausted his challenges, and that he was not entitled to such challenge as to either of said jurors. We are aware that it has been held in a number of cases, and seems to be the established rule in this State, that, although the court may err in holding a juror qualified who is not, yet, if appellant is tendered a fair and impartial jury, he can not complain, although he may have been deprived of a challenge by the improper action of the court. Without discussing the grounds upon which those decisions may have been based, we would observe, as to this case, that manifestly the juror Green was disqualified, and the court should have so held. If such had been the holding of the court, then, when the three last jurors, to wit, Dibrell, Roby, and Garrett, were presented to defendant as qualified jurors, though each admitted that he had formed an opinion as to the guilt or innocence of appellant, appellant could have exercised one challenge as to them, and so have rid himself of the most obnoxious of the three; but he was deprived of this by the action of the court. As presented, appellant was compelled to take three obnoxious jurors, each of *146 whom had formed an opinion as to his guilt or innocence; and concede that the court did not abuse its discretion in holding them competent, yet by its former improper action it deprived appellant of his right to exercise a challenge as to any one of them. We believe that the action of the court in holding the juror Green qualified was error. And in this case, where a majority of the jurors admitted that they had formed opinions as to the guilt or innocence of appellant, we can not say that, in the result, appellant had an absolutely fair and impartial jury to try his case; but we are of opinion that the action of the court in depriving him of a challenge was, under the circumstances, hurtful to him. For the error of the court above discussed, in the impanelment of the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.
