Jones v. State , 60 Tex. Crim. 139 ( 1910 )

This case was affirmed at the last term of this court. At that time Judge Davidson dissented, believing that the juror McLilland was disqualified and that the court erred in overruling appellant's challenge of him. Soon thereafter a motion for rehearing was filed in this court in which the matter is very strongly presented. In this motion there is a very clear distinction drawn between what is meant by a mere preponderance of the testimony and what would be required to show insanity by overwhelming proof. This matter is so well presented that we here adopt the following portion of this motion:

"Now, what conclusion concerning his guilt appears to be established in the mind of the juror, McLilland? It is clearly his fixed opinion and established state of mind, that the defendant having so killed without legal justification or provocation is guilty, unless by overwhelming evidence it is proved that he was insane. But the law does not require the defendant by any such quantum of proof to establish that fact. He is required to establish it by a mere preponderance of the evidence. And here it may be proper to observe what is the difference between `overwhelming' proof and a `preponderance' of the testimony.

"The word `preponderance' having so plain and well understood a meaning we do not find a great number of cases where the courts have found it necessary to define the term. In its original meaning, as is universally understood, it is simply an outweighing. The Century Dictionary gives the definition as, `Superiority in force, influence, quantity, or number; predominance,' and quotes Whipple's Essays, showing the plain and well understood meaning.

"`In his speeches we are struck more by the general mental power they display than by the preponderance of any particular faculty.' Nothing could be added to that definition and illustration; and no average mind of an English speaking person ever otherwise understood it. In the case of Groesbeck v. Marshall, 44 S. Car., 538, the court defines the term, and shows plainly how wide a departure there is in such a phrase from any such word as `overwhelming.' The court says, `The phrase "preponderance of the testimony" means, more likely than not.' In the case of Ball v. Marquis, 92 N.W. Rep., 691, et seq., the court says: `Evidence may preponderate, and yet leave the mind in doubt as to the very truth. In such cases the evidence does not fairly set at rest, but merely preponderates in favor of that side whereon the doubts have less weight.' Preponderating evidence may not satisfy the mind of its truth. Bryan v. C., R.I. P. Ry. Co., 19 N.W. Rep., 295.

"Upon the other hand, what does the term `overwhelming proof' mean? Merely that it must outweigh the opposing contention? We hardly think it will be so asserted. The Century Dictionary defines overwhelming to mean, `To overturn and cover; overcome; swallow up; submerge; overpower; crush,' and gives the illustration, `The sea overwhelmed their enemies.' Psalms LXXVIII, 53. `Overwhelming proof is proof sufficient to remove every doubt from the mind.' Bond v. Dorsey, 65 Md. 310. In State v. Ward, 39 Vermont, 225, it is said: `Where it appears upon the voir dire of a juror that he would require more evidence than is legally required to convict, this circumstance ought to disqualify him.' To the same effect are Waller v. State, 40 Ala. 325; Wright v. Comm., 32 Gratt. (Va.), 941. So, we confidently submit that there is no similarity of meaning between the terms, `overwhelming proof' and preponderance of the testimony.

"And where the law requires the latter quantum, and a juror upon his voir dire testifies that he will require the former, he disqualifies himself to hear the defense of a defendant charged with murder, whose sole reliance is that he committed the homicide without legal justification or provocation, and was insane at the time, and offers to prove the same by a preponderance of the testimony, which, while it may leave the mind in doubt as to the very truth, shall preponderate in favor of that side whereon the doubts have less weight, that is, where weighed by a mind open to such conviction upon such testimony; but who admits his inability to prove his defense by overwhelming proof — a species of proof hardly within the reach of a young and obscure negro, who, while always afflicted, had never been adjudged insane by a court, and had, happily, never before committed an act of such violence."

On further consideration the majority of the court are firmly convinced that we were in error in affirming the judgment of conviction. I confess that my own views have undergone some change, and while not clear that the original opinion is wrong, I am as far from being clear that it is right. It is a case with a death penalty. In such a case it is all important that appellant should have been tried by a jury free from substantial objection. Out of respect to the opinion of my associates and having some doubt myself as to the correctness of the original opinion, I think it both safer and wiser to hold the juror disqualified on the ground stated in appellant's objection, and to grant the motion for rehearing, set aside the affirmance, and reverse and remand the judgment, which is now done.

Reversed and remanded.