77 P. 598 | Nev. | 1904
The facts sufficiently appear in the opinion. The prisoners were convicted of murder in the first degree. A motion for a new trial was denied. They have appealed from the order and judgment.
In impaneling the trial jury, Richard Barry was examined. He stated, in substance, that he thought he had conversed with some of the witnesses, and with persons who pretended to know the facts; that he had read newspaper accounts of the crime; that he had heard and read that deceased had been killed on a freight train east of Lovelock about August 20th, last, and prior to his death had identified the prisoners, or some of them, as the guilty parties; that he had formed and expressed an opinion with reference to the guilt or innocence of the prisoners; that his opinion became fixed and definite at the time he read and heard of the offense, and he then had such opinion, based upon what he had heard; and that he had expressed that opinion. He was then challenged on the ground that he had formed and expressed an unqualified opinion as to the guilt or innocence of the accused. In cross-examination by the prosecution, he testified that his mind was not then in condition to render a verdict against the prisoners from what he had heard; that his opinion was formed upon general rumors, and from what he had read in the newspapers; that he would not refuse to give anyone a fair trial and rest his verdict upon the law and evidence; that, if what he had heard and read were true, the prisoners were guilty, and, if untrue, were not guilty, of the offense charged, and, if sworn as a juror, he would lay aside anything he had heard, and try the case upon the evidence and law, and render a true verdict accordingly. The court then asked him the following question: "I understand you to say you are conscious that, if you are sworn and accepted as a juror, you could put aside everything you have heard and read, and try the case according to the evidence and the law, and give the defendants a fair and impartial trial?" To which he answered, "I could." The court overruled the challenge. Defendants, whose peremptory challenges were exhausted before the completion of the jury, excepted.
Giving full consideration to all of the testimony contained in the above statement of the juror, it shows that he had *468 expressed an unqualified opinion that the prisoners were guilty or not guilty of the offense charged. Section 340 of the criminal practice act (section 4305, Compiled Laws of 1900) enumerates nine separate cases for a challenge for implied bias, as follows (section 4305; section 340): "A challenge for implied bias may be taken for all or any of the following causes: * * * Eighth, having formed or expressed an unqualified opinion or belief that the prisoner is guilty of the offense charged; provided, that such unqualified opinion or belief shall not have been formed or expressed or based upon the reading of newspaper accounts of the transaction." That the juror's opinion was not based upon newspaper accounts alone is satisfactorily shown by his testimony in response to questions asked by the court at the conclusion of his examination. The answer made by the juror in cross-examination could not affect the question of his competency, under the statute.
As was said by the Supreme Court of California in a similar case: "It was of no sort of import whether he in fact had any prejudice against the prisoner, or not, or whether he supposed, as a juror, he would be governed by the evidence, or not. The admitted fact being that he had unqualifiedly expressed his opinion upon the question of the guilt or innocence of the prisoner, he thereby became, in judgment of law, incompetent to serve as a juror, just as if it had appeared that he was related by consanguinity to the prisoner (also a ground of challenge for implied bias), in which case it would be idle to inquire of the proposed juror whether or not, in his opinion, he could give his accused kinsman an impartial trial." (People v. Edwards,
The court erred in overruling the challenge. Judgment reversed, and cause remanded for a new trial.
*469TALBOT, J., and FITZGERALD, J., concur.
