Black v. State , 42 Tex. 377 ( 1874 )

Roberts, C. J.

The facts in this case are substantially the same as in that of Andrew J. Walker, except that Green Butler said that he did not know the man tliat was with Walker when he was shot by Walker, nor did any witness recognize him as the person who was there then, and the description so far as given of the person who was with the person who shot Butler, did not correspond with the appearance of Black. It is attempted to be shown that Walker did the shooting, and that another person was there with him acting his part in the matter with Walker, and that Black was seen with Walker at several places, all that afternoon, and in the evening and night before and after the killing, and that therefore Black was the man who was with Walker, aiding in the killing of Butler.

The important question of fact is, was Black the person who was at Butler’s with the man who did kill Butler. Whether he was there or not, as may be inferred from the evidence, depends to a great extent upon the consideration of the time Butler was killed, and the time and distance from Butler’s, at which he was seen by the witnesses before and after the time Butler was killed, as to which no intimation of opinion will be here given.

The ruling of the court upon the application for a change of venue was the same, upon the same facts, as that in the case of Walker, their application having been made together, they being indicted in the same indictment. They severed on the trial, after their joint application for a change of venue had been overruled.

The charge of court in this case was the same in substance as that in the case of Walker v. The State, except that part of it quoted in the opinion in the Walker case relating to the alibi, which was omitted in the charge of the court in the Black case. What was said in the opinion in the Walker ease in relation to the overruling of the application for change of venue, and in relation to the other portions of the charge of the court, except concerning the alibi, need not be here repeated, but reference may be had to that opinion, as applying to this case, with the exception mentioned.

There is another ground of error contained in the bill of exceptions, and in the motion for a new trial, for which also, it is contended, the judgment of conviction should be reversed; and that is, that after the defendant had, in the selection of the jury, exhausted all óf his peremptory challenges, his challenge of B. Hclllhenny, one of the jurors, for cause, was overruled, and that thereby he was, against his will, and over' his objection, tided by a juror, who was not impartial, as shown to the court by the juror’s examination under oath.

Our Constitution provides that “in all criminal prosecutions. “ 'the accused shall have a speedy, public trial, by- an impartial “jury. (Bill of Bights, Section 8.)

The Code has provided the means of securing an impartial jury, by causing certain questions to be propounded to the juror, for the purpose of ascertaining whether or not he is liable to certain specified grounds of challenge for cause, one of which is as follows : “ That from hearsay or otherwise there “ is established in the mind of the juror such a conclusion as “ to the guilt or innocence of the defendant, as will influence “ him in his action in finding the verdict. For the purpose of “ ascertaining whether the last cause of challenge exists, the “ juror shall be first asked whether in his opinion the coneln- “ sion so established will influence his verdict. If he shall “answer in the affirmative, he shall be discharged. If he “ shall answer in the negative, he shall be further examined by “ the court, or under its directions, as to how his conclusion “ was formed, and the extent to which it will affect his action; “ and if the court is not satisfied from such examination that “ he is impartial, the juror shall be discharged.” (Paschal’s Digest, Article 3041.)

“ The court is the judge, after proper examination, of the “ qualification of a juror.” (Paschal’s Digest, Article 3044.)

The said juror having answered the above question in the negative, and being further examined, he said “ that [ie had “ read the report of the evidence in the case of The State -u. A. “ J. Walker, that he had formed an opinion thereon as to the “ guilt or innocence of the accused, that it would require other “ and different evidence to change that opinion; that the “ opinion so formed would not influence his verdict in the “ slightest degree, and that he would go into the jury box and “ give the accused a fair and impartial trial, according to the “ law and the evidence appearing on this trial.”

By a recurrence to the above quoted provisions of the Code, it will be seen that the object of the further examination is to ascertain first, that the juror has formed in his mind a conclusion ; second, the source from which it was formed, and third, the extent to which it will affect his action. When the question is first asked the juror, he is made the judge of the extent to which the conclusion that he has formed will influence his action. But when he is further examined, the court becomes the judge of the extent to which it will influence his action, and this must be determined by the nature of his conelusion, as ascertained from what the juror says in answer to the questions. A slight, merely general impression, derived from hearsay or floating rumor, may be denominated a conelusion which might not ordinarily be a disqualification. For it is implied in the shape of the first question as above quoted, that the juror may have some sort of a conclusion, founded on hearsay or otherwise, which would not disqualify him. A general opinion formed without any particular examination into the facts, and derived from a source in which the juror placed no great reliance, might be denominated a conclusion, and still it might generally not disqualify the juror.

On the other, hand, a satisfactory conclusion, from hearing and carefully, considering the evidence, would certainly disqualify the juror. In this case, the juror had read the report of the evidence in the Walker'case—Walker and the defendant being charged with the commission of the same offense, in the same indictment. The report referred to may be presumed to be the detail of the evidence at a former trial, as given in the newspapers of the city, which is usually published in cases exciting any general interest. He must have placed reliance in the report of the evidence which he read, in order to have enabled him to have formed a conclusion at all, and the fact that, as he says himself, that it would require other and different evidence to change that opinion, show’s, or at least renders it probable, that it was with some considerable attention to, and consideration of the facts reported, that he had formed his conclusion. Under such circumstances we are of opinion that the court below, in judging of the qualification of the juror, should not have been satisfied that he was an impartial juror.

The juror took his seat in the jury-box with a conclusion formed, when the defendant had not been heard, and without the benefit-óf the instruction of the court as to the law applicable to the case. If his conclusion was in favor of the prisoner’s guilt, it was as a weight put in the scale of justice before the trial commenced. Whatever of obstinacy of character and pride of opinion he possessed had to be overcome by other evidence. There are perhaps but few men who do not lean in favor of a preconceived opinion, founded on what they deem to be an authentic source. They look" favorably upon whatever will support it, and examine with increased caution whatever will oppose it. The love of consistency in the formation of their judgments requires this of them. Ho authority has been found for holding that this juror was qualified, and an abundance that is in opposition to it. (See Grayham & Waterman, New Trials, p. 377, and American authorities cited, 378, 379.) In the case of Monroe p. The State, cited in support of the ruling of the court below, the judge, before determining that the juror was qualified, satisfied himself by the answers to his questions, that the juror had really formed no conclusion as to the guilt or innocence of the prisoner. (23 Texas, 210.) Perhaps the general rule, as to the impartiality of a juror under our code cannot be better laid down than it was by Chief Justice Marshall, in the Burr case, which is as follows: “ Light impressions, which maybe supposed to “ yield to the testimony offered, which may leave the mind “ open to a fair consideration of the testimony, constitute no “ objection to a juror; but those strong and deep impressions “ which will close the mind against the testimony that may be “ offered in opposition to them, which will combat the testi- “ mony and resist its force, do constitute a sufficient objection “ to him.” (1 Burr’s Trial, 416.) When the conclusion formed is such that, it will require other and different evidence from that on which he has confidently relied in forming such conclusion to change it, and the evidence on which he has based it is a report of the evidence in the case, believed by him to be reasonably authentic and correct, it can hardly be said that he is an impartial juror. And when upon an examination of the juror, it was doubtful whether he was impartial or not, it would be safer, and more in unison with the spirit of our Constitution and laws relating to the trial by jury, to decide against the qualification of the juror. (Moses v. The State, 10 Humph. Tenn. Rep., 456.)

We are of opinion that the court erred in overruling the motion for a new trial, upon the grounds that have been referred to, and therefore the judgment must be reversed and the cause remanded.

Reversed and remanded.