61 Fla. 67 | Fla. | 1911
Robert L. Walsingham Avas indicted for murder in the first degree, tried and found guilty of murder in the second degree, sentenced to the state prison for life, and seeks relief here by Avrit of error.
The first assignment is based upon the “coui’t’s overruling defendant’s challenge for cause to the juror, A. W. Potter.” We find that the jurors were being examined upon their Amir dire, and, upon the examination of A. W. Potter, the following proceedings took place:
“Q. Have you formed or expressed any opinion in this case? A. No sir. Q. Do you know the facts and circumstances of the case? A. No sir, I don’t knoAv that I do. Q. Are you related by blood or marriage to the defendant ? A. No sir. Q. Have you any bias in his favor or prejudice against him? A. No sir. Q. If taken oil this jury could you render a fair and impartial verdict according to the evidence? A. Yes sir. Q. Have you any conscientious scruples against the infliction of capital punishment? A. No sir. Q. Are you related to the deceased? A. Yes sir. Q. What was the relationship? A. His wife was a second cousin of mine. Q. His wife was a second cousin of yours. A. Yes sir.
By Mr. Kehoe.
Q. Are you related by blood or marriage to the deceased? A. By marriage — he married a cousin of mine. Q. Carter did? A. Yes sir. Q. Are you related by blood or marriage to the defendant Washington? A. No sir. Q. Have you heard this case discussed any since it occurred ? A. Very little. Q. Have you heard it discussed any by the witnesses? A. No, sir. Q. Were you present at the preliminary examination — any part of it? A. No sir. Q. Have you any bias for or prejudice against this defendant? A. None at all. Q. If taken upon this jury do you think that you could render a fair and impartial trial according to the evidence you hear? A. Yes, sir. Q. Where do you live, Mr. Potter? A. About five miles southeast of this place.
Mr. Kehoe: We challenge the juror for cause — his relationship by marriage to the deceased.
The Court: Let’s see, what is the rule — Carter’s wife was his second cousin, as I understand it. He will not be excused. I don’t think his relationship to the deceased would disqualify him under the statute.
Defendant excepts.”
Section 3905 of the General Statutes of 1906 provides that “the qualifications of jurors in criminal cases shall be the same as their qualifications in civil cases.” Paragraph 2 of Section 1492 of the General Statutes of 1906, relating to the challenge of jurors, was amended by chapter 5902 of the Laws of Florida, Acts of 1909, page 49, so as to read as follows:
“Sec. 2. For cause. — The court shall, on motion of each party in any suit, examine on oath any person who is called as a juror therein to know whether he is related to
Under the provisions of this statute, it is clear that the juror was related by affinity to the deceased within the third degree, the deceased having married the second cousin of the juror. Page v. State, 22 Tex. App., 551, 3 S. W. Rep. 745. But it does not affirmatively appear that the wife of the deceased was living at the time of the trial or that she left issue surviving her. On the contrary, it would seem that we might well infer from the examination and cross-examination of the juror that the wife of the deceased was dead, as she was referred to in the past tense. The trial judge apparently was under this impression, since he stated, “Carter’s wife was his second cousin, as I understand it.” If the wife of the deceased was not living at the time of the trial, or some of her issue, the juror was not disqualified. Morrison v. McKinnon, 12 Fla., 552; Gillespie v. State, 168 Ind., 298, 80 N. E. Rep.,
The second assignment is based upon the overruling of the defendant’s challenge for cause of the juror, J. B. Elliott, and the third assignment is based upon the overruling of the defendant’s peremptory challenge to such juror. Upon the examination of this juror upon his voir dire, the following proceedings were had:
“Q. Have you formed or expressed any opinion in this case? A. Well, yes, I guess I have, like a great many others hearing the reports about it. Q. What have you
Cross Examination.
By Mr. Kehoe.
Q. Are you related by blood or marriage to the deceased? A. No, sir. Q. You knew the deceased? A. Yes, sir. Q. Are you acquainted with the Carter family ? A. Yes, sir. Q. With Mr. Yates? A. Yes, sir, I am acquainted with all of the Yates. Q. Have you ever heard Mr. Yates or either of the Carter family discussing this case? A. Yes, sir. Q. Which one? A. I talked with the old man Carter about it. That is the reason I said I didn’t know whether--- — • — Q. Is that Sampson Carter? A. Yes, sir. Q. Did he purport to tell you how it occurred-? A. Well, he told some little about it. I don’t remember — I don’t think that he said he saw the thing or not. Q. Did you talk to any of the other Carters about it? A. Not that I remember. Q. Did you talk to Mr. Yates about it. A. Not that I remember. Q. Or Mr.
Mr. Kehoe: We challenge the juror for cause.
The Court: I understood you to say in answer to Mr. Wilson’s question a moment ago, that you could go into the jury box, after hearing the testimony of the trial here, you could render from that testimony, without being influenced at all by anything you previously heard, or by any opinion you previously heard, a verdict according to the evidence — is that correct? A. Yes, sir.
The Court: Are you sure you could do that ? A. I will explain; Mr. Kehoe asked me if the evidence was changed would that have an effect on the evidence that I had already heard. I said it would.
The Court: In other words, if the evidence was different from what you already heard- — you would render a verdict on the evidence sworn to here? A. Yes, sir.
The Court: I think he is qualified.
Mr. Kehoe: I don’t think-------
The Court: I think he is qualified. .
Defendant excepts.
Mr. Kehoe: We challenge J. B. Elliott, peremptorily.
The Court: You have exhausted your challenges. Challenge denied.
Defendant excepts.”
We have repeatedly held that the trial court in the exercise of a sound discretion has the right to excuse a juror, even though he is qualified. Mathis v. State, 45 Fla., 46, 34 South. Rep., 287; Williams v. State, 45 Fla., 128, 34 South. Rep., 279; Peaden v. State, 46 Fla., 124, 35 South. Rep., 204. Also see Dorman v. State, 48 Fla., 18, 37 South. Rep., 561, and Hopkins v. State, 52 Fla., 39, 42 South. Rep., 52. The discussion in 24 Cyc., 273, concerning the relationship or business connection of jurors, will also be found useful. The statute gives this discretionary power to the trial judge, since it is expressly stated therein “if it shall appear to the court that the juror does not stand indifferent to ' the cause, or is otherwise incompetent, another shall be called in his stead for the trial of that cause.” This statutory provision is in full accord with section 11 of the Declaration of Rights in the State Constitution of 1885, which guarantees to one accused of crime “the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed.” In construing a similar constitutional provision, the Supreme Court of Indiana held in Block v. State, 100 Ind., 357, that “The question, what is- an impartial juror, is largely a judicial question, in view-of the Constitution which in a criminal case guarantees to the defendant a trial by an impartial jury, and hence section 1793, R. S. 1881, so far as it enumerates causes of challenge, excluding all others, is not necessarily conclusive upon the courts.” This is a well reasoned case? To the same effect is Gaff v. State, 155 Ind., 277, 58 N. E. Rep., 74, 80 Amer. St. Rep., 235; State v.
“A juror who said the talk he had had about the case had made an impression on his mind as to the guilt or innocence of the prisoner, and he was still of the same opinion as to such guilt or innocence, and was asked, ‘Do you feel that you could sit here as a sworn juror and decide the case according to the evidence adduced in open court, absolutely disregarding what you may have heard?’ answered, ‘I possibly might, if the evidence was entirely different from what I have heard.’ Held not error to excuse him from the panel.” In State v. Miller, 29 Kans. 43, it was held that “A trial court in empanelling a jury to serve in a particular case should have and has a very extensive and almost unlimited discretion in-'discharging a person called to serve on the jury, who might,- in the opinion of the court, not make the fittest or most competent