74 Mo. 270 | Mo. | 1881
Defendant was indicted in the Callaway county circuit court in May, 1880, for murder in the second degree, for killing one Louis Meyers. Being put upon Ms trial he was found guilty as charged, and his punishment assessed at ten years’ imprisonment in the penitentiary. The cause is before us on writ of error sued out by defendant, and the chief errors assigned are that the court erred
William B. Terry, one of the jurors summoned by the sheriff, on his voir dire examination, stated that he had formed and expressed an opinion; that such opinion was formed from what he had read in the local papers, and from what he had heard different parties say; that he had read in the papers what purported to be a substantial statement of the testimony taken before a justice of the peace on the trial of the defendant; that several parties who were present at the trial before the justice gave him a substantial statement of what the testimony was; that different parties who professed to know the facts in regard to the difficulty talked to him about it and told him what they knew; that from these matters he had formed and expressed an opinion more than fifty times ; that he had the opinion then ; that he had talked with no one who claimed to have seen the difficulty, nor with any one who was present and saw the difficulty ; that while it would take evidence to change such opinion, he thought he could decide the case and find a verdict from the testimony introduced on the trial free from all prejudice and bias. William B. Sallee, another one of the jurors summoned, stated that he had formed and expressed an opinion from reading the local papers, which purported to give a substantial statement of the testimony given before the justice of the peace on the trial of the cause; that he still retained it, and that it would require testimony to remove it; that he could, as a juror, hear and try the issue and find a verdict in accordance with the evidence introduced, independently, without bias, notwithstanding such opinion. Defendant challenged both these jurors for cause, which was overruled, and this action of the court, it is insisted, was erroneous.
Mo. 223; State v. Rose, 32 Mo. 346; State v. Core, 70 Mo. 491; State v. Brown, 71 Mo. 454; State v. Barton, 71 Mo. 288. We might, therefore, dismiss the subject by saying that these cases settled the question in this case, but in view of the earnestness and ability displayed by counsel for defendant in endeavoring to show that these decisions are against the weight of authority, and in view of the fact that in the last decision made the court was divided upon the question; and in view of the importance of the subject, we deem it not only respectful to counsel, but altogether appropriate to review the authorities of other states as affecting the question.
The point settled, by the cases decided by this court, and above referred to, and which we are asked to reconsider, is, that a juror who, upon his examination touching his qualifications as such, answers that he had formed an impression or opinion as to the guilt or innocence of the accused, that such opinion has been formed either from rumor or newspaper reports, or both, which it would require evidence to remove, is not an incompetent juror, provided it further appears to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that such juror, notwithstanding such opinion, will determine the issue upon the evidence adduced on the trial, free from prejudice or bias. It is claimed by counsel that this view is not sustained by the weight of authority, and we, therefore, give the result of our investigation of the authorities to which we have been cited, and others which have fallen under our observation.
In the case of Reynolds v. United States, 98 U. S. 145, a juror stated that he believed he had formed an opinion as to the guilt or innocence of the accused, though not upon evidence produced in court; that he still entertained the opinion; that he did not think it would influence his
In the case of Ortwein v. Commonwealth, 76 Pa. St. 414, where the defendant was found guilty of murder in the first degree, five jurors were examined touching their qualifications, all of whom stated that they had formed opinions from newspaper accounts or rumor, or from both ; that the opinions thus formed they still had; that it would take evidence to remove their opinions; that notwithstanding their opinions they could try the issue on the evidence and render their verdict thereon uninfluenced by such opinions. All of them were held to be competent jurors, although one of them had formed his opinion from reading a newspaper containing a report of the testimony at the coroner’s inquest. Chief Justice Agnew, who delivered the opinion, observed “that the jurors did not entertain very positive or decided opinions; that they were the results of rumor and newspaper statements in part. All were clear that their opinions were so unfixed that they could hear and determine the case on the evidence given on the trial below, uninfluenced by their previous impressions. They did not appear to have prejudged the case, or to have fixed and decided opinions. That evidence should be required to change their first impressions, has but little weight. Such must always be the fact even in the case of slight impressions or loose opinions. An impression once formed necessarily exists till something else changes it. The inquiry, therefore, turns upon the character of the opinion. Is it a prejudgment of the case ? Has it such fixedness and strength as will probably control the juror’s verdict, or has it been formed on the same evidence substantially as will be given on the trial ? Much weight is, therefore, to be given to the judgment of the court below in whose presence the juror appears, and by whom his manner and conduct, as well as his language, are scrutinized.”
So in the case of Myers v. Commonwealth, 79 Pa. St. 308, a juror stated that ho had formed and expressed an
In the case of Balbo v. People, decided in 1880, 80 N. Y. 484, where the prisoner was found guilty of murder in the first degree, a juror being examined “testified in substance that he had read at the time in a newspaper an account of the murder, and that he was of the impression that the account he read was the report of the testimony taken before the coroner’s inquest, and that he had not talked the matter over with any person; that he formed at the time a positive and clearly marked opinion in respect to the guilt or innocence of the accused, which opinion was still in his mind, and that it would require strong evidence to remove the opinion he then entertained. He further stated that he read the papers every day, and read the account of the murder in the same way he read other items; that he took no particular interest in the case; that if a statement was contradicted in the next day’s paper,
So in the case of Cox v. People, 80 N. Y. 500. A juror being challenged for cause, testified that he had read of the case and formed a decided opinion as to the guilt of the prisoner, which would require evidence to remove, and that if sworn as a juror he would enter the jury box with this opinion; that his opinion was formed from having read in the newspapers an account of the transaction, and among other things a statement purporting to be a confession by the prisoner of the crime; that he accepted this account as true for the reason he had read nothing to the contrary, and that he believed the statements in a newspaper that were not unreasonable until they were contradicted, and in that-sense he had an opinion of the guilt of the prisoner; that he had no knowledge whether the statements were true or not, and that his opinion was a contingent one based on the supposed truth of the statements; that he had no pride of opinion, and had no doubt of his ability to set aside the opinion he had on entering the jury box, and to decide the case according to the evidence, without being influenced thereby, or by what he had read.” It was held that the challenge for cause was properly overruled, and that the juror was competent.
In the case of Guetig v. State, 66 Ind. 94, where the defendant was convicted of murder in the first degree, it
In the case of the State v. Lawrence, 38 Iowa 51, a juror stated on his examination : “I heard of the transaction, of the killing of Baurbeck, at the time it happened, and read the newspaper account of it. I believed the man had been murdered and that defendant did it. It would take some evidence or explanation to remove the opinion from my mind. I have no bias for or against the defendant. I know nothing about the case except what I have heard fi’om rumor and newspaper reports. I have no personal knowledge of the facts otherwise, and believe I can sit and decide the case with the same impartiality as if I had never heard of it.” This juror was held to be competent, it being observed in the disposition of the question, that “ it is scarcely possible, in a community where an act has been done which startles and attracts the public mind, to obtain a juror who should bo entrusted with so grave a matter as the determination of the guilt or innocence of the accused, whose mind has received no impression with regard to the case. Either from public rumor or newspaper reports almost every person competent to serve as a juror will have learned something in regard to the circumstances attending the commission of the alleged offense. And as some impression more or less strong is almost invariably made by such reports, the rule which would demand a juror with no opinion respecting the case, would, in cases attracting public attention, and in which intelligence .is most needed, practically exclude every intelligent man from the jury.”
In the case of Wilson v. People, 94 Ill. 299, a juror was held to be competent who, in answer to questions touching
In the case of O’Connor v. State, 9 Fla. 215, a juror was held competent who stated that he had formed an opinion fi’om rumor as to the guilt or innocence of the accused ; that it would require evidence to remove the opinion so formed, but that if taken on the jury he could readily and without hesitation find a verdict according to the evidence, although the verdict might be contrary to such opinion. It was observed in the opinion delivered in this case that “to hold the jurors incompetent because they said it would take evidence to remove the opinion so formed, although they stated they could readily and without hesitation find a verdict according to the evidence, would be to hold that no juror can be competent who has formed an opinion oxx mere rumor, because if he has formed
In the case of People v. Welch, 49 Cal. 174, a juror was held competent who stated : “ I have heard of the matter from parties who are familiar with it; have formed an opinion as to the guilt or imiocence of defendant, a decided if not an unqualified opinion; have that opinion still.” He was held competent under a statute of that state which declares that “ a hypothetical opinion founded on hearsay or information supposed to be true, unaccompanied with malice or ill-will, does not disqualify a juror, and is not a cause of challenge for either actual or implied bias. In the case of People v. King, 27 Cal. 507, a juror was held competent who stated that he had heard what purported to be a statement of facts in the case; that he believed the statements to be true, and fi’om them had formed an opinion which he then entertained, and which it would require evidence to remove. In the case of Ogle v. State, 33 Miss. 383, the principle heretofore enunciated by this court, we think, is sustained. So it is in the case of Carson v. State, 50 Ala. 134, and also in the case of Thomas v. State, 36 Tex. 315.
¥e have been cited by counsel for defendant to cases from New York, Pennsylvania, California, Indiana and Illinois. "We deem it unnecessary to advert to these cases further than to say we have given above the latest decisions in each of these states upon the question involved. ¥e have also been cited to cases from Virginia. In Clore’s case, 8 Gratt. 606, a juror was held to be competent who stated “ that he had not heard any of the evidence, nor a report of it from any who had heard it, but from the rumor of the neighborhood he had formed an opinion which was at the time he spoke existing on his mind, and which he should stick to, unless the evidence should turn out to be different from what rumor had reported it to be.” In the case of Jackson v. Commonwealth, 23 Gratt. 919, the
From the investigation made, we are satisfied that the ruling made by this court in the case of the State v. Core, supra, and others hereinbefore referred to, is sustained by the weight of authority. We perceive no error in the action of the trial court in overruling defendant’s challenge to the jurors Terry and Sallee.
In addition to what has been said, it may be observed that our statute provides, “ that it shall be a good cause for 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 formed on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” Under this statute, where the venireman has formed an opinion, either from his own knowledge, or from conversing with witnesses to the transaction, or from having heard their testimony on a trial of the cause, he is subject to be challenged for cause. If his opinion be formed only from rumor or newspaper reports, he is still subject to challenge for cause, unless it further appear that the opinion is not such as to prejudice or bias his mind, and if this does appear he is a competent juror. Whether an opinion formed from rumor or newspaper reports is such an opinion as to prejudice or bias the mind of the juror, is a question of fact to be determined under our practice by the trial judge as any other fact. While it is not for the juror, as was said in the case of the State v. Baldwin, supra, to decide this question, yet it is perfectly competent for the court, with a view to ascertain whether or not the opinion is of such a character as to create either bias or prejudice, to make full inquiries of the j uror in relation thereto. This, we believe, is the universal practice in the courts of nearly all the states. The duty of ascer