29 Kan. 43 | Kan. | 1882
Lead Opinion
The opinion of the court was delivered by
This was a criminal prosecution, brought by the state of Kansas against George L. Miller, in which the defendant was charged with keeping and maintaining a common nuisance, to wit, a place where intoxicating liquors were illegally kept for unlawful sale, barter and use, and without any permit therefor, and contrary to the statute in such cases made and provided. The action was commenced before a justice of the peace, and was afterward taken on appeal to the district court, where the case was again tried, before the court and a jury, and the defendant was found guilty, and sentenced to pay a fine of $250 and the costs of the prosecution, and to stand committed to the county jail until the fine and costs were paid. The defendant now appeals to this
“First, In excluding John Estlinbaum from the jury, upon the challenge of the state.
“Second, In overruling the defendant’s challenge to John Hay.
“Third, In overruling the motion for a new trial, and rendering judgment upon the verdict of the jury, notwithstanding the fact that the verdict is not sustained by sufficient evidence.”
The first ground for error is founded upon the ruling of the court had upon the examination of John Estlinbaum, who was called and examined for the purpose of ascertaining his competency to serve as a juror in the case. The examination and ■ruling are as follows:
“John Estlinbaum, being'sworn on his voir dire, testified: ‘ I live in Junction City, Davis county; have lived here a number of years; know the defendant, George L. Miller; have heard of this case; have formed an opinion upon it; have not expressed an opinion; know nothing about the facts in the case; I was absent in Colorado during all the time covered by the complaint, viz., from October 1st to December 15th; returned about six weeks ago to Junction City. My opinion is formed upon rumor; it would take some evidence to remove it, but I could try the case impartially as a juror. I have'not been doing business in Kansas since the 1st day of May, 1881. I have not been employed by the defendant since that time, except about three days assisting in moving a house for him. Had tended bar for him a short time prior to May 1, 1881.’”
The second ground of alleged error is, the action of the court below in overruling the defendant’s challenge to John Hay as a juror. The evidence with respect to John Hay’s competency to serve as a juror is as follows:
, “.John Hay being called as a juror in this case, and being sworn upon his voir dire, testified: ‘I reside in Davis county; am a citizen of the county. I am acquainted with the defendant, Miller. X was called as a juror in this case upon the trial of it before the justice of the peace, and I was peremptorily challenged by the defendant at that time. I have an opinion in my mind as to the guilt or innocence of the defendant upon the charge in the complaint in this case; I have no doubt as to the correctness of my opinion"; this opinion would remain until removed by evidence. I have •not expressed an opinion. Opinion founded on rumor. I have no bias or prejudice against the defendant, and would be governed entirely by the evidence in making up my verdict. I believe I could try the case impartially.’ ”
The fact, in the present case, that the juror had an opinion with respect to the guilt or innocence of the defendant, and that he had no doubt as to the correctness of his opinion, and that his opinion would remain until it should be removed by evidence, was sufficient to render the juror incompetent to serve in the case; and we think that the court below erred in overruling the defendant’s challenge to the juror for cause. With this view of the case, it is unnecessary to consider the other ground of alleged error.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
Concurrence Opinion
I concur in the foregoing opinion, but desire to add, in order to guard against any possible misconception, that the court does not depart from the rule of qualification of a juror, laid down in the Medlicott Case, 9 Kas. 257. The statement of the juror, that “he had no doubt of the correctness of his opinion,” indicates a settled conviction, a fixedness of belief, which is something very different from the mere impression, the evanescent opinion which every man receives and forms from hearing or reading any statement of ;a transaction. Where a man has settled down to a positive and clear conviction, one of whose correctness he has no doubt, he cannot be said to come to a hearing of the testimony in an impartial condition of mind, Such a condition, it seems to me, was disclosed by this juror, and therefore I think he ought to have been set aside.