Carr v. State , 22 Ohio App. 78 ( 1926 )

Plaintiff in error was indicted for having solicited a bribe while he was a county commissioner of Butler county, Ohio. He was tried at the January term, 1925, of the court of common pleas of that county, and, on May 4 of the same year, was found guilty as charged in the indictment, and sentenced, as appears of record. A motion for a new trial was filed May 7, 1925. On October 5, following, the court overruled the motion and passed sentence. This action is prosecuted to reverse that judgment.

Many grounds are stated and urged for a reversal of the judgment, and while there is merit in some of the contentions of counsel as to errors of the court in its verbose and involved charge, we confine our consideration to the claim that the juror A.B. Price was not qualified to be a juror on account of his examination on voirdire. He stated expressly that he had not formed or expressed an opinion as to the guilt or innocence of the accused; that there was no reason whatever why he could not act as a fair juror; that there might have been talk about the case prior to the election of 1923; that he did not have any opinion as to whether Carr was guilty or not guilty; and that nothing had occurred from October, 1923, to the date of the trial, that caused him to have an opinion about it.

Numerous affidavits were filed to the effect that Price had talked about the case and had expressed an opinion as to Carr being a crook; that Carr was guilty of the offense charged against him; that he ought to be convicted, and the penitentiary was the right place for him; also, that both Carr and Kinsch were guilty; that the case against them was plain, and they should be convicted; that if he were a member of the jury, trying the case against Carr and Kinsch, he would convict them and send them to the penitentiary. These and other statements, according to the affidavits, were made beginning November 5, 1924, and extending over a period until March, 1925.

The defendant made affidavit that he did not know of these statements prior to May 6, 1925. Attorneys Gard, Andrews, Burns, Rogers, and Bickley all filed affidavits that prior to May 6, 1925, they, as counsel for Carr, did not know of the statements contained in the affidavits of Law, Halderman, Smith, Heiland, Beatty, and Bennett.

From his examination on voir dire, above set forth, and from the additional part of it in which he evaded certain questions and undertook to express his view of what circumstantial evidence was (which was incorrect), and what he would do in case certain questions were asked and answered on the trial, and from the whole record, there is no question in our minds that juror Price did express an opinion prior to the time he was called as a juror as to the guilt or innocence of the defendant, Carr; that when examined, on his voir dire, he had an opinion on the subject of the guilt or innocence of Carr, which he concealed.

We call attention to the opinion of the court in the case ofBusick v. State, 19 Ohio, 198, decided in 1850, which has been the law of Ohio ever since. After stating the facts, the court said:

"He had not only formed this opinion, but had openly declared, in the presence of witnesses, at different times, that if that testimony did not hang the prisoner, there was no use of laws. He was totally disqualified to act as a juror, by reason of his preconceived and publicly expressed opinions. But when I take into the account the fact of his denial that he had thus formed and expressed an opinion, when interrogated by prisoner's counsel, and that he in this way wormed himself into the jury box to pass upon the evidence which he had once said would hang the prisoner if there was efficacy in the law, I am almost constrained to say that he was incompetent for the want of a sound moral sense."

Price, under oath, denied that he had formed or expressed an opinion as to the guilt or innocence of Carr, and yet we have testimony of Price's neighbors that he made statements in the presence of numerous persons that he had an opinion, and that he expressed it, and this, in view of his sworn statement that he had no opinion on the subject.

It is not a question of whether Carr was guilty or was not guilty. The question is: Can a person, called as a juror, evade, misstate, or swear falsely to questions of vital importance not only to the state but to citizens, and still be a qualified juror? If such is the law, the jury system and the judicial branch of the government is tottering to a fall. In our opinion, from the evidence there is no question that Price was not a person qualified to be a juror in this case; that in the case at bar there was not a jury in the sense that is guaranteed by the Constitution and laws of the state of Ohio. Therefore the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

BUCHWALTER, P.J., and HAMILTON, J., concur.