Roberts v. State, 4 Ga. App. 378

Roberts v. State

4 Ga. App. 378 | Ga. Ct. App. | 1908

Hill, C. J.

(After stating the facts.)

The challenge to the jurors was not to the array, hut to the polls, and should have been allowed. The challenge was directed to the competency of each individual juror, and the court should have heard the evidence which was offered by the defendant to test such competency. Trial by jury is valuable only when the jurors are absolutely impartial, and the constitution of this State gives to every person accused of an offense against the laws of the State the right to demand a trial by an impartial jury, if he makes his request properly and before the jury is sworn. When a challenge to the polls is thus made, it is the duty of the trial judge to put the juror upon his voir dire and ask him such questions as will test his fairness and impartiality. The questions to be asked must be determined in each case by the character of the challenge made "to the juror. The questions must be such as will in each case determine the juror’s competency. Where the defendant is on trial for a misdemeanor, the court may ask the statutory questions prescribed for use in the trial of felony cases, or such other questions as will test the juror’s impartiality. If the juror, when put on the voir dire, qualifies and becomes apparently competent, either the defendant or the State then has the right to put the individual juror upon the court as a trior, and to submit any proof that will tend to illustrate the question of qualification. Humphries v. State, 100 Ga. 260 (28 S. E. 25); Thompson v. State, 109 Ga. 272 (34 S. E. 579); Wells v. State, 102 Ga. 659 (29 S. E. 442).

In this case the jurors qualified when the statutory questions used in the trial of felony cases were propounded to them, but this fact manifestly did not test their impartiality. In answer to these questions each juror might qualify with entire truthfulness, and yet be an incompetent juror in the case, under the facts which the defendant offered to prove. If it was true that the only witness to the criminal act in the case against this defendant had been the only witness to the criminal act against two other parties convicted at the same term of the court, charged with similar offenses, and that the credibility of this one witness had been attacked in the two cases in which there were convictions, and that the panel of jurors from which the defendant was to select the jury *381to try his ease was composed of jurors who had tried the other two cases and who had believed this one witness notwithstanding the attack made upon him as to his credibility, and that the defendant in the present ease relied upon the same testimony relating to the credit of this witness, it would seem that the jurors who had believed the testimony of the witness notwithstanding the attack in the two other cases would not be entirely competent to try the defendant. The intent of the law is that the juror shall come to the consideration of the case unaffected by any previous judgment or opinion; and certainly a previous judgment or opinion as to the credibility’' of the one witness against the defendant, expressed by the verdicts in the other two cases, should disqualify the juror who had' expressed such judgment or had entertained such opinion. Whether this sole witness to the criminal act charged against the defendant was worthy of credit was vital to the defense of the accused. If the jurors believed this witness they would convict the accused; if they did not .believe him they would acquit. If they had believed him notwithstanding the attack made upon his credit in the two former cases, it is certainly reasonable to presume that they would also believe him when a similar attack was made upon his credit by the defendant in the present case. At least, the jury who had tried the other two cases would come to the consideration of the present-case entertaining an opinion that the sole witness against the defendant was -worthy of credit. The defendant would, therefore, have the burden of combating a preconceived judgment or opinion formed by the jurors as to a most material fact in the case. It is therefore clear to our minds that the court should have allowed, this showing to be made, and, if the facts were proved as established, should have sustained the defendant’s challenge to the polls, and should have given to him a panel of jurors entirely free from any preconceived opinion as to the credibility of the witness against him. The correctness of this view is so manifest, it seems to us, that citation of authority is hardly necessary to support it; but the principle here announced is strongly sustained by the Supreme Court in Bryan v. State, 124 Ga. 79 (52 S. E. 298), and in Thompson v. State, and Wells v. State, supra. See also Brown v. State, 57 Miss. 424. There is no merit in the other assignments of error. Judgment reversed,.