Brown v. State , 105 Tex. Crim. 522 ( 1926 )


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  • We will consider at length but one question raised in this motion. Mr. Holcomb sat on the jury. Following his voir dire examination he was challenged for cause. Alleged error of the court in overruling this challenge is presented in bill of exceptions No. 2. It is there stated that Holcomb swore that he knew appellant and that the circumstances surrounding this case would probably influence him, if selected, *Page 527 and that he could not make a fair and impartial juror because of these circumstances. To this bill is appended a qualification by the trial court, in effect, that Holcomb said he felt like he was not a qualified juror, but, answering the court, he stated that he could and would try the case according to the law and evidence; that he knew nothing about the particular case and had no opinion as to the guilt or innocence of the defendant. Bill of exceptions No. 4 was taken to the overruling of a motion for new trial, based in part on the overruling of appellant's challenge for cause of juror Holcomb, and also upon the alleged disqualification of said juror and his misconduct in the jury room. Upon the hearing of the motion for new trial a number of the jurors testified, among them Mr. Holcomb, who said:

    "When I was being examined as a prospective juror in this case * * * I answered that owing to the circumstances leading up to the time I made his acquaintance, I didn't feel like serving on this jury. I said that I would try to be governed by the evidence, but that I would go into the jury box with this in my mind. * * * As a matter of fact, I couldn't get away from that which was in my mind. There were facts and circumstances surrounding the things that I knew that made me draw conclusions. I had these things in my mind for something like a year and a half before this trial and still had them in my mind during the trial and did not forget them, and when I retired to the jury room they were still in my mind. * * * I participated in the argument of the case and advanced my theories of the case there in the jury room and took the lead in asking that the defendant be given the two-year penalty. * * * The things that were in my mind and the things that I knew were that I had heard of this matter and it had been discussed between one of the officers and myself. I conveyed to the officer with whom I was talking what information I had on being questioned by him. I gave him this information to work on with reference to catching this defendant in violation of some phase of the prohibition law, and of the charge for which he was indicted. I do not remember exactly what I told the officer that I talked to, but we were discussing what I knew of the actions of this defendant and at the time I was talking to him (the officer) I had an opinion in my mind that the defendant was violating the prohibition law and I still have that opinion. I had that opinion before I heard any evidence in this case the other day. With that opinion fixed in my mind I went *Page 528 into the jury box trying to try the case on the evidence in the case and I came out of it the same way. Of course, I didn't get entirely away from this opinion. I tried to get away from it but I couldn't. The opinion that I had before I went into the trial of the case would have required evidence to remove it. As a matter of fact I felt like that I had to a certain measure though not to a great extent, been instrumental in this defendant being caught. I had an opinion as to the guilt or innocence of the defendant at the time they caught him, and I will say frankly that I had an opinion on this particular case and could not get away from it under the circumstances."

    We are impelled to believe Mr. Holcomb not qualified to sit on the jury in this case. The constitutional and statutory guarantee to every person tried for crime that he shall have a trial before a fair and impartial jury is violated if one man of the twelve is partial and unfair, as completely as if the whole panel had prejudged the case. Multiplied words add nothing to the truth and force of this statement.

    It is doubtful if a juror should ever be taken whose voir dire answers disclose that he is conscious of such feeling or knowledge in a particular case as would lead him to conclude and state under oath that he ought not to sit. At least the trial judge should fully explore the antecedents of such juror and in doubtful cases he should be excused. It is true that in his qualification to bill of exceptions No. 2 the court below certifies that the juror said he could and would try the case according to the law and the evidence. The juror may have so stated, but in his testimony on the hearing of the motion for new trial his recollection seems to be that he said he would try to try the case according to the law and the evidence, but that he did in fact have an opinion in this particular case before he was taken, which opinion he could not forget or get away from. He states that he had discussed and advised with the officers as to how appellant might be apprehended, and felt that he had been instrumental in his being caught. He said that he took the lead in asking that the jury give appellant a two-year penalty. Even though the trial judge might have been misled by the answers of the juror on his voir dire examination, the statements made by him in connection with the motion for new trial would seem to establish the fact that the juror was biased, had an opinion in this case which he was not able to lay aside, and which influenced his verdict. *Page 529

    We do not think the court should have charged the jury on circumstantial evidence. Appellant was driving the car when he met the officers, and threw out a jug of whiskey, and scuffled with them over a bottle of liquor which seemed to be on the seat with appellant. Matters pertaining to the refusal of a continuance need not be discussed in view of our disposition of the case.

    Believing that appellant did not have that fair and impartial trial to which he was entitled because of the attitude of the juror Holcomb, the motion for rehearing will be granted, the judgment of affirmance set aside, and the judgment now reversed and the cause remanded.

    Reversed and remanded.

Document Info

Docket Number: No. 9362.

Citation Numbers: 289 S.W. 392, 105 Tex. Crim. 522

Judges: LATTIMORE, JUDGE. —

Filed Date: 10/28/1926

Precedential Status: Precedential

Modified Date: 1/13/2023