Nantz v. State , 94 Tex. Crim. 283 ( 1923 )

Appellant, in his motion for rehearing, directs attention to the fact that certain bills of exceptions relating to the action of the court in forcing him to try his case before certain jurors were not discussed. The still with which the State claims the liquor in question was manufactured by the appellant was pointed out to the juror and examined by him. A number of persons told him the purported facts and the appellant's connection therewith. The juror was unable to state whether the persons to whom he had talked were witnesses or not. He said that he had not talked to the sheriff or city marshal but these were not all the witnesses used by the State. One of the jurors testified that the facts in the case had been detailed to him by one who frequented the marshal's office, and that they had been detailed by other persons whose names he could not recall, but he was not able to state with certainty that he had not talked to the sheriff and the city marshal who were witnesses against the accused.

The object of our statute (Art. 692, Penal Code) touching the qualification of jurors, is to foster the purity of a trial by jury. On the subject, it has been said by this court:

"Our Bill of Rights provides, that the accused in all criminal prosecutions `shall have a fair trial by an impartial jury.' Art. 1, sec. 10. This language is of no doubtful significance. The trial shall be `fair,' and the jury `impartial.' `Impartial' means `not partial; not favoring one party more than another; unprejudiced; disinterested; equitable; just. Jove is impartial, and to both the same.' Webst. Dict. As thus defined, `impartial' evidently means not favoring a party or an individual because of the emotions of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause, should not, must not be prejudged. The accused in this State, under our Constitution and laws, is entitled to a `fair trial by an impartial jury;' and there is no other method provided by which the accused can be tried and punished." (Randle v. State, 34 Tex.Crim. Rep..)

By the terms of the statute the trial court is given discretion to receive a juror who has formed an opinion from rumors or newspaper reports or editorials when the juror declares on his voir dire that the opinion will not influence his verdict. The discretion, however, is not given to force the accused to accept a juror who has formed an opinion from a knowledge of the facts involved in the prosecution which has been obtained from his own observations or from conversations with witnesses. See Quinn v. State, 51 Tex.Crim. Rep.; Shannon v. State, 34 Tex. Crim. 9; Obenchain v. State, 35 Tex.Crim. Rep.; Keaton v. State, 40 Tex.Crim. Rep.; Gallaher v. State, 40 Tex. Crim. 307 : Nelson v. State, 58 Tex.Crim. Rep.; Collins v. State, 84 Tex.Crim. Rep., 206 S.W. Rep. 688; Slack v. State, 67 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, p. 285.

In the instant case, one of the items of evidence was the still, and much attention is given to its description and explanations by the State's witnesses. It appears from the bill of exceptions that the appellant and the still were brought in to the town of Mineral Wells together and were observed by at least one of the jurors; that both of them had had the purported facts in the case detailed to them by persons who were either witnesses or who had been in close touch with the witnesses; that each of them had formed an opinion touching the guilt or innocence of the appellant on the information thus obtained. It is true that in the bill, as qualified, they declared that the opinion would not influence them. It is believed, however, that the intimacy of the jurors with the facts, acquired in the manner described, their failure or refusal to name the persons with whom they had talked, the absence of any evidence upon the motion for new trial combating the fact that their information thus obtained from witnesses, rendered it improper that the court should force the appellant to try the case before the jurors named over his protest and against his objection after he had exhausted his peremptory challenges, and that in refusing to grant a new trial the court was in error. Entertaining this view, the affirmance heretofore entered is set aside, the motion for rehearing is granted and the cause is now reversed and remanded.

Reversed and remanded.