| Kan. | Sep 15, 1863
At tito April term, 1861, of the district court for Lyon county, J acob Morton and J acob Bledsoe were jointly indicted for arson. It also appears that before that time Morton and Bledsoe had been arrested for the alleged offense and had had a preliminary examination.
Before trial in the district court the parties moved to be tried separately, which' motion was granted by the court. The defendant, Bledsoe, was then tried and convicted of the offense, and afterwards, at the same term, Morton was also tried and convicted.
At the organization cf the jury for the trial of Morton, the jurors were severally sworn upon their voire dire, and the defendant, Morton, challenged, for cause, Robert B. Hurst and John Bay, summoned as jurors, o.n the ground that Hurst had formed and expressed an opinion as to the guilt or innocence of the defendant, Morton, based upon the testimony of the witnesses heard by him at the preliminary examination, and that John Bay had formed and expressed an opinion upon, the same point from hearing the testimony of the witnesses on the trial 'of Bledsoe, Morton’s co-defendant.
The court overruled the challenge in both cases, and pronounced the challenged jurors competent, to which ruling the defendant excepted.
The defendant then challenged said Hurst and Bay peremptorily. Whereupon the trial proceeded and said defendant was found guilty by the jury, wrho fixed the punishment at five years’ hard labor.
The defendant then moved for a new trial and an arrest of judgment, which motions -wore overruled by .the court and sentence passed upon the defendant in accordance with the verdict.
The defendant then presented his bill of exceptions, which was signed, and brings his cause, by appeal, to this court, for a reversal of said judgment.
Section one hundred and eighty-four of the code of criminal procedure (Comp. Laws, p. 263,) provides that:
“ It shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor, and not such as to prejudice or bias the mind of the juror, he may be sworn.”
In this case the challenged jurors had formed opinions not founded on.“rumor” merely, but upon the testimony of the witnesses delivered under the solemnity of an oath, and under the test of cross-examination. An opinion formed under such circumstances would, as it seems to us, be much more likely to influence and control the mind of a juror than an opinion founded “ only on rumor,” and wo think the judge erred in overruling the challenges for cause.
The section of the criminal code, already cited, provides that the challenged juror shall not be disqualified from the mere fact of having formed or expressed an opinion on the issue, “if it appear that such an opinion is founded only on rumor, and not such as to prejudice or bias the mind of the juror.’' The record in this case shows that in the examination of the jurors Hurst and Bay upon their voire dire after each had stated that he had formed an opinion, lie was asked whether his opinion, so formed, was such as to prejudice or bias his mind and prevent him from giving a verdict upon the evidence adduced before him on the trial; to which each of them replied that he had not. We think this response <lid not remove the obj ection. It is the mind of the court which must be satisfied that the challenged juror is free from bias and prejudice, and not that of the juror lnmself. A juror, bower honest, could not be trusted to decide as to the condition of his own mind, whether or not it is so free
Had the defendant chosen to rely upon this error of the court, the judgment must, we think, have been set aside, but the record shows that he then challenged the same jurors peremptorily and thus removed them from the panel. By this means he seems effectually to have relieved himself from the grievance of which he complains, -and the case would seem to be brought within the provision of section two hundred and seventy-six of the code of criminal procedure, which directs that “on an appeal the court must give judgment-without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
With this rule laid down for our guidance, we do not think it incumbent on us to reverse the judgment in this case for an erroneous ruling of the com t, from the consequences of which the defendant saw fit to relieve himself by the exercise of his right of peremptory challenge.
K--The only doubt which has arisen in our minds in this case, has been from the consideration that the record does not show whether or not the prisoner exhausted his right of peremptory challenge, but on this point a case exactly parallel appears to have’been decided in Tennessee, where a prisoner challenged a juror for cause, and his objection was overruled — the juror being, in fact, incompetent — and the prisoner afterwards challenged him peremptorily.
Held, that unless the record showed that the prisoner had exhausted his peremptory challenges it was no error for which judgment would be reversed. (McGowan vs. The State, 9 Yerger, 184; see, also, Ferriday vs. Selsen, 4 How. Miss., 506; Carroll vs. The State, 8 Humph., 315.)
The judgment of the court below is affirmed at the cost of the appellant.