Mangum v. State , 139 Tex. Crim. 111 ( 1939 )

I cannot agree with my associates that this case should be affirmed and am constrained to express my reasons therefor.

We are here dealing with one of the fundamentals, — the right of trial by twelve jurors, impartial, worthy and qualified. Our system provides, as near as it is humanly possible, for the selection of jurors satisfactory both to the State and to the defense. To inspire the greatest confidence in our citizenship in the fairness of our government requires a record devoid of any reasonable doubt. No greater contribution can be made than that which fosters such confidence and an assurance to all citizens that they and their descendants shall be thus treated if and when called to the bar of justice to answer any charge which may be made against them. Because of the precedent herein set and that justice may be done in this particular case, I have given to the motion before us my most earnest consideration in the light of the authorities which have been presented and which are available to us.

We must view the citizen at the bar selecting his jurors. This is done in the light of the information presented in the court room. The juror in question, O. L. Dishman, was accepted upon his voir dire examination without any intimation, so far as the record shows, that he ever knew or heard of or had any opinion regarding the case, and with full confidence that he would sit with eleven others who would have open minds to receive the evidence from the witness box confronting the man accused and would consider it in the light of the law given them in charge by the court, and that they would retire together as twelve men to review this evidence in an effort to discover the truth in all matters at issue. No citizen of our country is called upon to render a higher service than that which he may render as a juror passing upon the property, liberty or life of the citizens of his own country. The reputation of a man for fairness as a juror is undoubtedly a cherished asset to any one privileged to perform that service.

Viewed from the standpoint of the appellant, would he have accepted this juror had all the controversy been placed before him, whether true or untrue? Would the court himself have sustained a challenge to such a juror in order that no question might arise as to the fairness of a trial with him as a member of the jury if each witness had testified before the juror was selected? Had all of the defendant's challenges been exhausted, would the court have imposed this juror on appellant?

According to the affidavits filed in the case, O. L. Dishman, a juror, had received a summons to a special venire on Monday. Within a day or two of that time, the fact was discussed in the presence of a young lady boarding in the Dishman home and in the presence of two nephews of Mrs. Dishman, who claimed to have been visitors there. Appellant's guilt and his punishment were discussed pro and con. It was said that the juror had a stubborn view toward the appellant and at least some opinion as to the severity of the punishment which should be given him. The State controverted most of the facts set out in the appellant's affidavit by affidavits of others, including that of the juror himself and of his wife, Mrs. Jennie Dishman. Miss Mae Johnson, the lady witness, declined to give her affidavit but came into court upon the motion for new trial and testified that on the morning after the homicide newspapers were read in the Dishman home and a discussion of the parties followed; that Mrs. Dishman knew the appellant and remarked that the picture did not look like Dee Mangum; that they called him by his given name frequently. It developed that Mrs. Dishman had been acquainted with and had kept company with the appellant before she was married. This is not denied and it is not shown that appellant knew Dishman was her husband. At this time juror Dishman made some derogatory remarks about the matter, including the assertion that Mangum had been going with his secretary and that had brought about the divorce by his wife. It was also stated that Mrs. Dishman called her sister-in-law, who was related to the appellant, and discussed the matter with her. It further developed that Mrs. Dishman was a constant visitor in the court room during the trial; that her nephews, Bob and Tom Ellis, were frequently there; that Miss Johnson had attended some. Many of the important facts thus testified to by Miss Johnson were not controverted by the affidavit of Mrs. Dishman or by that of her husband, whose conduct as a juror was being attacked.

It is important to note that while Miss Johnson testified personally on the motion for new trial, she had previously been visited by the prosecution, and it is presumed that they knew something of the testimony which she would give. During the recess in the hearing on the motion for a new trial and at the noon hour, a supplemental affidavit from Dishman was secured denying some of the facts to which Miss Johnson had testified in the forenoon. A summary of the evidence discloses without dispute that Mangum had been discussed in the Dishman home. Mrs. Dishman admits that in her affidavit. There is no denial that he was a distant relative by marriage and also related to her nephews, Tom and Bob Ellis. There is no evidence in the record that Dishman's identity as the husband of a kinsman was known to the appellant at the time Dishman was selected as a juror.

The failure of Dishman to come into the court room and personally testify on the motion for new trial after his conduct as a juror had been so viciously attacked cannot be passed without notice, nor can the importance of his failure to do so be overlooked. It is quite true that there is no evidence of any misconduct of the jury nor of Dishman as a juror, but our Constitution, Section 10, Article 1, (Bill of Rights) provides for a trial "by an impartial jury." It is also prescribed that a jury in such cases as that before us shall consist of twelve men. Section 13, Article 5 of the Constitution. Even though Dishman had said nothing to his fellow jurors about his opinion in the case and so restrained himself as to vote as they voted in a perfectly mechanical way, which is certainly the most harmless position he could have taken, still the law had not been complied with. Cases should be tried according to law.

Debate on the subject of majority verdicts, plurality verdicts, and the number of jurors is a continuous one. Whether twelve jurors concurring is wise or not does not enter into the consideration of this case, but the theory of it is interesting. In 1682, Lord Summers wrote on the subject and his conclusion is corroborated by Lord Coke, wherein he recognized the significant fact that the purpose of the jury is to ascertain the truth. They referred to the recorded fact that the twelve major prophets of the Bible foretold the truth; that the twelve Apostles preached the truth; that representatives of the twelve tribes of Israel went to Canaan to investigate and discover the truth; and that the Holy City, New Jerusalem, was founded upon twelve stones of truth. If it were given to us to legislate, we could find no higher reasoning satisfying our minds than that which was acceptable to Lord Summers and to Lord Coke.

This court had before it a question in the case of Wilson v. State, 79 S.W.2d 852, wherein a bill of exception complained of the qualifications of a juror under facts much like those presented in this appeal. The juror drove a school bus and had discussed the nature of the homicide involved, as well as the parties, in the presence of the school children and the teacher riding in the bus. The county attorney learned that a motion for new trial was being prepared and anticipated the testimony of the teacher. Upon being informed of this fact the juror left the office of the county attorney and went to see the teacher. She declined to become involved in the matter. The only denial which the State had of the evidence given by the school children as to the conversation was by the juror himself. Because of the fact that the State did not bring the school teacher as a witness to testify in person, this court proceeded on the assumption that the juror could have secured her testimony to exonerate him, and looked upon the circumstances with disfavor, reversing the case. The action of the court in doing so is, in our opinion, a very wise one, but the facts of this case are much stronger. It is shown without contradiction that the appellant and the offense with which he was charged had been discussed in the Dishman home in the presence of and by the juror, at least to some extent, and these facts were not known to the appellant at the time Dishman was accepted on the jury. We cannot presume that the trial court found contrary to these undisputed facts. The least that can be said is that we have grave doubt as to the qualifications of the juror and respect the right of the defendant on trial to have true answers to his questions and to know what is in the mind of each and every venireman presented for service in his case.

In the face of these facts and viewing the opinion in the Wilson case, supra, with approval, I am driven to respectfully dissent from the majority opinion overruling the motion for rehearing, and believe that the importance of the question is such as to justify my action in filing this opinion.