Black v. Territory

• Decision Date: 24 January 1890
• Citation: 3 Wyo. 313,22 P. 1090
• Parties: BLACK v. TERRITORY
• Court: Wyoming Supreme Court

22 P. 1090

3 Wyo. 313

BLACK v. TERRITORY

Supreme Court of Wyoming

January 24, 1890

Error to district court, Albany county.

Black was indicted for murder in the first degree, and convicted. From an order overruling his motion for a new trial, he brings error. Affirmed.

Judgment affirmed.

W. H Fishback, for plaintiff in error.

Hugo Donzelmann, Atty. Gen., for the Territory.

VAN DEVANTER, C. J. CORN and SAUFLEY, JJ., concurred.

OPINION

VAN DEVANTER, C. J.

The plaintiff in error was tried in the district court of the county of Albany upon an indictment for murder in the first degree, a verdict of guilty was returned by the jury, and judgment was entered imposing the death penalty. A motion for a new trial was made by the defendant, upon the ground that previous to the trial, one of the jurors had formed and expressed an opinion as to the guilt of the accused, which was not disclosed by the juror on his examination. In support of the motion, the defendant filed the affidavit of one Joseph E. Hartley, charging the juror in question with having publicly stated, shortly before the trial, "that Black, the defendant, ought to be hung for what he had done in the case." To meet this, the prosecution filed the affidavit of the juror implicated, denying in the most positive terms the statement attributed to him by Hartley, and also denying the formation of any opinion whatever on his part concerning the case prior to hearing the evidence at the trial. The prosecution also presented the affidavits of several citizens having a long acquaintance with Hartley, stating that his reputation for truth and veracity was bad, and that he was not entitled to belief. The affidavits of two persons were filed by the defendant, tending to show that Hartley was a credible witness, and that he bore a good reputation for truth and veracity. Upon a consideration of these affidavits the district court overruled the motion for a new trial, and this is assigned as error. It thus appears that there was a conflict in the evidence concerning the alleged misconduct of the juror, and that a question of fact was thereby presented to the trial court which did not involve the guilt or innocence of the accused, and which it was the duty of the court to determine according to the weight of the evidence. A careful examination of all the affidavits in the record convinces us that the decision of the trial court was not only in accord with the weight of the evidence, but was supported by the great preponderance thereof. The judgment of the court below is therefore affirmed.

CORN and SAUFLEY, JJ., concurred.

NOTE.

COMPETENCY OF JUROR--PREVIOUSLY FORMED OPINIONS.

The opinion entertained by a juror which disqualifies him is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and whereby, in the mind of the juror, the accused stands condemned already. People v. Barker, (Mich.) 60 Mich. 277, 27 N.W. 539.

The expression of opinion which disqualifies a juror is a fixed deliberate, and determined one, which will not yield to evidence. State v. Dorsey, (La.) 40 La. Ann. 739, 5 So. 26.

It is not ground for new trial that a juror who had stated on his voir dire that he had no prejudice against defendant, and could render an impartial verdict, was subsequently discovered to have stated before the trial that he believed defendant guilty, because two juries had found him guilty, as the two statements are not inconsistent. Blackman v. State, (Ga.) 80 Ga. 785, 7 S.E. 626.

Where it is shown by the voir dire examination of a juror that his mind is impressed so thoroughly with the idea of the prisoner's guilt from newspaper reports that he cannot presume him to be innocent, and can only admit the "possibility" of his being so, he is not competent to sit as juror in the case. Olive v. State, (Neb.) 11 Neb. 1, 7 N.W. 444.

It cannot be said that a juror has formed an unqualified opinion who states that the opinion which he has formed is based upon hearsay, and not upon statements made by any one claiming to have personal knowledge, and that he thinks that he can still render a true verdict. State v. Ormiston, (Iowa,) 66 Iowa 143, 23 N.W. 370; Steagald v. State, (Tex. App.) 22 Tex. Ct. App. 464, 3 S.W. 771.

A juror who states that he has formed and expressed an opinion as to defendant's guilt; that it was based on newspaper reports and rumor; that the opinion was "right positive;" that it would take evidence to remove it; but that he could give defendant a fair and impartial trial, and, if the evidence was different from what he had heard, he would change his mind, --is incompetent. Washington v. Com., (Va.) 86 Va. 405, 10 S.E. 419.

Where a juror testifies, upon examination as to his competency, that he resided in the neighborhood where one of the parties resided, and had had a great deal of talk about the case, that he was not free from bias, and that he thought his condition of mind would influence him in his verdict, it was held he should be excluded from the jury. Hutchinson v. State, (Neb.) 19 Neb. 262, 27 N.W. 113.

The opinion entertained by a juror which disqualifies him is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and whereby, in the mind of the juror, the accused stands condemned already. People v. Barker, (Mich.) 60 Mich. 277, 27 N.W. 539.

A juror who states that he would not give the testimony of one engaged in selling liquor as much weight or credit as if he was engaged in some other business is prima facie incompetent to serve as a juror in a prosecution for selling intoxicating liquor, and the trial court should permit him to be questioned on that subject. Stoots v. State, (Ind. Sup.) 108 Ind. 415, 9 N.E. 380.

Where a juror states on his voir dire that he heard a person in whom he had confidence make a statement of the case upon hearsay, and that thereupon he (the juror) formed an opinion, provided the statement was true, but had formed no conclusion as to whether or not it was true, it is not a disqualifying conclusion. Balding v. State, (Tex. App.) 23 Tex. Ct. App. 172, 4 S.W. 579.

A juror who states that he has formed an opinion from evidence he heard at the preliminary trial and the report of the evidence in a local paper, but that he can discard his formed opinion, and render an unbiased verdict, is incompetent. State v. Hultz, (Mo. Sup.) 106 Mo. 41, 16 S.W. 940.

On an indictment for murder, the fact that a juror states that he thinks one ought to be sent to the penitentiary for killing another in self-defense will not disqualify him, where he further states that, if instructed by the court to acquit in case defendant killed deceased in self-defense, he would do so. State v. Ford, (La.) 42 La. Ann. 255, 7 So. 696.

On an indictment for murder, a "fixed" opinion as to defendant's guilt will not disqualify a juror where it is the result of rumor, and not of bias or prejudice against the defendant, and he states that he would be governed solely by the evidence in making up his verdict, and that he can render a fair and impartial verdict on the evidence. State v. Dent, (La.) 41 La. Ann. 1082, 7 So. 694.

Comp. St. Neb. 1889, p. 951, § 669l, which provides that the reading of newspaper statements shall not disqualify a juror in a criminal case, if he states on oath that he can render an impartial verdict according to the evidence, also furnishes the correct rule as to how far the reading of newspaper statements disqualifies jurors in civil cases. Scott v. Chope, (Neb.) 33 Neb. 41, 49 N.W. 940.

Under Code Civil Proc. Or. § 187, providing that an opinion already formed by a juror is not alone sufficient to sustain a challenge, but that the court must be satisfied from all the circumstances that the juror cannot try the case impartially, the ruling of the court on the juror's qualifications will not be reviewed unless all of the evidence taken at the examination be presented in the record, although the testimony produced shows the juror to have a fixed opinion on the merits of the cause. State v. Tom, 8 Ore. 177, followed. Southern Pac. Co. v. Rauh, 49 F. 696.

Where a juror states on the voir dire that he has heard one of the parties to the suit make a statement relative to its merits, and that he has formed an opinion which it will take evidence to change, but thinks that he can render a just verdict, it is within the discretion of the court to sustain the challenge of the adverse party, made under Code Iowa, § 2772, subd. 9, providing that "when it appears the juror has formed or expressed an unqualified opinion on the merits of the controversy, or shows such a state of mind as will preclude him from rendering a just verdict," he may be challenged for cause. Sprague v. Atlee, (Iowa,) 81 Iowa 1, 46 N.W. 756.

A juror challenged by the defense said: "I have formed an opinion. I don't know as I have an opinion now, particularly. What I heard said created an impression on my mind, and I have that impression now. It would require evidence to remove that impression. I think I could sit and try this case fairly and impartially * * * without being biased by my previously formed opinion, but it would take evidence to remove the opinion formed." Held sufficient to warrant a finding that he had formed and entertained an opinion. 46 Hun 164, affirmed. Young v. Johnson, (N. Y. App.) 123 N.Y. 226, 25 N.E. 363.

On a motion to set aside a conviction of murder in the second degree, on the ground of a previously expressed opinion of a juror that defendant should be hung, the juror in question admitted that he might have said defendant "would" be hung, but denied that he said she "should" be hung; that he did not then know that he had been placed on...