3 Ga. 453 | Ga. | 1847
By the Court.
delivering the opinion.
This is a writ of error to a judgment of the Superior Court of Richmond county, whereby the plaintiff in error was convicted of murder.
When the venire in this case was called, John Barnes, one of them, was put upon the prisoner, who required him to be sworn upon his voire dire. He answered both questions prescribed by the statute negatively, and then voluntarily added, that he had conscientious scruples against the infliction of capital punishment; whereupon the Court permitted the Attorney General to challenge said juror for cause, the prisoner’s counsel objecting
Solomon L. Bassford, another of said panel, being sworn upon his voire dire at the instance of the prisoner, stated that, “ he feared he had some bias or prejudice on his mind.” The Court asked the' juror whether it was against the prisoner or the crime; he answered against the crime, and he was thereupon pronounced qualified.
To all which decisions of the Court below, counsel for the accused excepted.
No adjudicated case has been produced from England, and it is urged that the very fact that there is no instance of such a challenge in the books, is conclusive against it; whether this inference is rebutted and this silence sufficiently explained by referring to the statute of 7th and 8th William III, ch. 21, as having obviated all question on the subject in England, by disabling Quakers from serving on juries, I will not undertake to say.
The question has been repeatedly made in the State and United States Courts, and so far as I am informed, been uniformly decided' against the competency of the juror.
In The United States vs. Cornell, 2 Mason R. 91, Mr. Justice Story says : “ To compel a juror to sit in such a case, is to compel him to decide against his conscience or to commit a solemn
In The United States vs. Wilson et al., 1 Bald. R. 83, Coates, one of the jurors, being called, stated that he had conscientious scruples against giving a verdict which in its consequences might be the means of taking away the life of the prisoner; whereupon Mr. Dallas challenged him for this cause.
By the Court. — “ If the juror should act according to his declaration, his conscientious scruples would prevent him from deciding according to the evidence and his solemn affirmation. We should hold it a good cause of challenge if the question remained unsettled. The challenge is allowed.”
In The People vs. Damon, 13 Wend. R. 355, Chief Justice Savage says, “ Such a person is unfit; he has prejudged the question ; he has made up his verdict without hearing the evidence, and ought to be excluded upon common law principles. It would be a solemn mockery to go through the forms of a trial with such a jury, or even one such juror. The prisoner is sure to he acquitted, independent of the question of guilt or innocence. It would be a misnomer to call such a proceeding a trial.”
The Supreme Court of Pennsylvania, in The Commonwealth vs. Lesher, 17 Serg. & Rawle R. 160, say: “ Nor, in our opinion, ought any thing short of positive authority induce us to commence a practice fraught with so much danger of corruption, in criminal trials, as the putting of twelve men upon their oaths and solemn affirmations, some of them bound by their oaths and by the law to say the truth according to the evidence, and the rest of them bound as strongly by their conscience to deny the truth, with firmness and obstinacy just in proportion to the atrocity of the facts in proof; so that the more aggravated the murder, so much more intense must be the struggle between conscience for the law and conscience
(It is true that Chief Justice Gibson dissented from the opinion just quoted, and assigned cogent reasons for so doing ; still I must say, that after examining them carefully, they have failed to convince me that the majority erred.
If it were proposed to allow a juror to challenge himself, or in other words to excuse himself from the performance of this or any other duty, on account of real or pretended scruples, felt or feigned, the argument of the Chief Justice would be entitled to great consideration ; for, the precedent being once set, the knave and the infidel, as well as the honest man and the Christian, would seek protection under it. Indeed, no one can pretend to assign limits to the mischiefs that would ensue. "Witnesses would refuse to testify, and militia-men to muster.
On the contrary, we hold that every man is bound to do his whole duty to the government which protects him, in every situation in which he may be placed in life. Hence, it has been often ruled, that a juror has no right to challenge himself; and though a good cause of challenge subsists, yet if neither party will take advantage of it, the Court cannot reject him. Bickham vs. Bissant, Coxe R. 220.
Without citing other cases in support of the principle under discussion, we are of opinion, in the language of the tribunal last referred to, that the scruples of a juror, whether real or not, (for into their genuineness, no human tribunal can easily inquire,) amounting to a pre-determination to condemn or acquit a prisoner, disregarding the evidence or disregarding the law, if declared by the juror or otherwise made known, form a legal ground of principal challenge ; and if either side thinks fit to challenge for that reason, the cause is_ sufficient.
And this conclusion rests upon principle. Does a juror who cannot conscientiously convict a man of murder, stand indifferent as he stands unsworn l is he, in the language of Lord Coke, liber homo ? — that is, not only free from all bodily bonds, but likewise from all mental impediment 1 is he above all exception ? will he impartially hear and examine, and acquit the innocent, and convict the guilty ? will he faithfully carry into effect the true objects of the trial by jury 1 We think not.
In The People vs. Damon, the Court held, that if it was made to appear, even after a juror was sworn,^that he was totally incom'(petent by reason of having pre-judged the case, that it was not too late to set him aside and call another. The rule, however, as stated by Hawkins and other standard writers on criminal law, is, that no juror can be challenged by either side without consent, after he has been sworn, unless it be for some cause which happened since he was sworn. 1 Coke Inst. book 3, ch. 9; 2 Hawkins Pl. Cro. 568; Yelv. R. 24; 1 Chitty Crim. Law 545. This last author maintains that the proper time for challenging is between the appearance and the swearing of the jurors, ib. And this we take to be the true doctrine.
In Beauchamp vs. The State, 6 Blackf. R. 307, one of the exceptions was, that the State was allowed peremptorily to challenge a juror after he was accepted by the prisoner; and the Supreme Court affirmed the judgment, laying down the mile, that “ either party may challenge at any time between the appearance and swearing of the jury.”
To the same effect is the decision in Hooker vs. The State of Ohio, 4 Ham. R. 350. The Court say, “ For these reasons the law has wisely provided, that the right of the peremptory challenge ought to be held open for the latest possible period, to wit, up to the actual swearing of the jury.”
As to the remaining ground of error, namely, that the Court
Inasmuch, however, as the juror showed himself indifferent
God forbid that I should withhold from a prisoner, situated as this unfortunate man is, one jot or tittle of his legal rights. He is entitled to the whole of them, to the last hair’s breadth, and Tie shall have them. Courts of justice as well as jurors, are hound to give to the accused even the benefit of their doubts ; in this case we have none; and as the appeal can only address itself to our feelings as metí, the only response it can receive, is that given by Sir Matthew Hale when importuned unseasonably for mercy, “I must have mercy on the country.” In such cases we are but the ministers of the law — her decrees constitute our justice.
Judgment affirmed.