Tellis v. State , 42 Tex. Crim. 574 ( 1901 )

I believe the judgment should be reversed because of the action of the court overruling appellant's challenge for cause to the juror Carson. Upon his voir dire the juror stated he had formed "no opinion as to the guilt of innocence of this defendant in this case. Thereupon, being informed that the predicate for perjury in this case was laid and based upon the examination of the defendant before the grand jury at El Paso County on the 7th of October, 1899, when they had under investigation whether Edelberto Garcia had on the 1st day of October, 1899, at the Cafe saloon in the city of El Paso shot and killed Ed O'Connor, he was asked if he had formed or expressed any opinion as to the guilt or innocence of said Edelberto Garcia; and the juror answered yes, that he had both formed and expressed an opinion as to the killing of Ed O'Connor by Garcia; that said opinion was fixed, and that he still had such opinion; that it remained unchanged, but that he could try this case under the law and the evidence; that the opinion he had formed was not from hearing the evidence or talking with the witnesses but from newspaper reports." Cause for challenge was urged for the reason that the juror had formed and expressed an opinion as to the subject matter to be tried in this case. My brethren say: "Under the rule laid down by the decisions on the subject, we do not believe the juror was shown to have been disqualified to sit in the murder case. He was therefore in our opinion qualified to sit as a juror in the perjury case then being tried." This seems to concede that if he had been disqualified as a juror in the murder case, then he would be disqualified to sit in this case. I believe under our decisions that if the murder case had been upon trial he would have been disqualified as juror, and that being true, he would be disqualified in this case. It was necessary under the indictment charging perjury for the State to show appellant's testimony before the grand jury false, wherein she testified to the alibi. Now, if the juror's statement is to be believed, he had a fixed opinion, which would remain unchanged, that Garcia, who did the shooting, was guilty; that being true, it would inevitably follow that the testimony of appellant as to the alibi would be false so far as the juror was concerned. This was the issue upon which the perjury necessarily hung. When the juror went upon the jury with the conclusion in his mind fixed and established that Garcia was guilty of a homicide, the alibi in his mind was false, the State's case was correct, and appellant was a perjurer. I have understood, and still understand, except in the opinion of my brethren in this case, that wherever the conclusion as to the guilt of an accused, or one of the parties associated or connected with the crime, is fixed in the mind of the juror, he is necessarily, under the statute itself, disqualified. There is an unbroken line of decisions to this effect. The juror would clearly be disqualified in the murder case if Garcia was on trial. Post v. State, 10 Texas Crim. App., 579; Shannon v. State, 34 Tex.Crim. Rep.; Sessions v. State, 37 Tex.Crim. Rep.; Gilmore v. State,37 Tex. Crim. 81; Obenchain v. State, 35 Tex. Crim. 490. But this would be so independent of the statute. The Constitution guarantees to the accused "a trial by an impartial jury." No act of the Legislature can make an impartial juror of a partial one. Nor has the Legislature undertaken to do so. They have provided that certain causes exist for challenge, but they have not undertaken, and, I apprehend, will not, to say that a partial juror is an impartial one. It is expressly enacted that a juror who has an established conclusion as to the guilt or innocence of an accused in his mind shall not be competent to sit in the case. If such conclusion is established, it matters not whence the reasons for such conclusion comes, or what produces it. There is a line of cases which hold that, where a juror has formed an opinion from rumor and hearsay, which is not fixed and established, and which he can discard, and try the accused fairly and impartially, he is not disqualified (White's Annotated Code of Criminal Procedure, section 747, subdivision 4); but that line of decisions has no application to the case in hand, because the juror here testifies positively that he has a fixed opinion, and that that opinion will remain unchanged. How the juror in this case can be impartial can not readily be understood, and I do not believe appellant has been tried by an impartial jury. I therefore dissent.