Blackwell v. State

• Citation: 132 So. 468,101 Fla. 997
• Parties: BLACKWELL v. STATE.
• Decision Date: 26 February 1931
• Court: United States State Supreme Court of Florida

132 So. 468

101 Fla. 997

BLACKWELL v. STATE.

Florida Supreme Court

February 26, 1931

En Banc.

Error to Circuit Court, Calhoun County; Amos Lewis, Judge.

J. T Blackwell was convicted of first degree murder, and the brings error.

Affirmed.

Syllabus by the Court.

SYLLABUS

In criminal cases, whenever after a full examination the evidence given upon a challenge leaves a reasonable doubt in the mind of the trial judge of the impartiality of a juror the defendant should be given the benefit of the doubt and his challenge of such juror for cause should be sustained.

The finding of the trial court upon the issue of whether a juror is impartial ought not to be set aside by the reviewing court unless the error is manifest. Where the challenge is on the ground that the juror had formed an opinion, it must be made clearly to appear that, upon the evidence, the court ought to have found that he had formed such an opinion that he could not in law be deemed impartial.

The fixedness or strength of an existing opinion is the essential test of a juror's competency, when his competency is challenged upon that ground, and the court should look specially to such state of mind in passing upon the question of competency. If the juror's opinion is not fixed and settled, and he is not warped by prejudice, but the opinion entertained by him is only such as would naturally spring from public rumor or newspaper reports, and his mind is open to the impressions it may receive from the evidence, so that such opinion will readily yield to the evidence and the law he is competent.

Voir dire examination of talesmen holding opinion based on common talk considered, and talesmen held competent in view of the showing made that they had not talked to witnesses in the case, and that the existing opinion entertained by them would readily yield to the evidence, there being no contradictory showing, and the trial judge being satisfied of their impartiality.

A statement by a venireman that an existing opinion would readily yield to the evidence will not necessarily qualify him as a competent juror against a clearly contradictory showing.

One accused of crime is entitled to a fair and impartial jury to try his cause, but he is not entitled to any particular jury or juror. Defendant's right is not one of selection, but is a right to reject jurors who are biased, prejudiced or otherwise incompetent. In excusing prospective jurors, the trial court exercise a very broad discretion, much more so than in the retention of jurors.

In a trial for homicide, a special charge upon self-defense was given at the request of the state which contained the following language: 'Third. That he (the defendant) resorted to all means consistent with his own safety to avert the danger, and to avoid the necessity of assaulting his adversary.' Held, that while abstract precision would have been served by charging that the defendant should have resorted to all 'reasonable' means, etc., in the circumstances of this case the omission of that word was not prejudicial, because it clearly appears from the evidence that the degree of effort used by the defendant to avert the difficulty was not a disputed issue; the uncontradicted showing being that the defendant used no effort to avert the difficulty.

An indictment was found against 'J. T. Blackwell.' All the proceedings are styled, 'The State of Florida v. J T. Blackwell.' The verdict reads: 'We, the jury, find the defendant, 'James' T. Blackwell, guilty of murder in the first degree. So say we all.' Held, that the verdict sufficiently identifies the defendant and that there is no fatal variance between the indictment and the verdict.

Evidence examined, and held sufficient to support verdict of murder in the first degree.

COUNSEL

John H. Carter and John H. Carter, Jr., both of Marianna, for plaintiff in error.

Fred H. Davis, Atty. Gen., and Carter, Solomon & Pierce, of Marianna, for the State.

OPINION

STRUM C.J.

Plaintiff in error, hereinafter called the defendant, was adjudged guilty of murder in the first degree and sentenced to death, to which judgment he takes writ of error.

In this court, it is first contended by the defense that the trial court erred in overruling defendant's challenge for cause of the veniremen H. R. Pitts and D. M. Newman, both of whom apparently were thereafter peremptorily challenged, as neither appears to have served on the trial jury. Later on, and before the jury was sworn, the defendant attempted to peremptorily challenge the veniremen Bailey and Bowen. An objection by the state on the ground that the defendant had exhausted his peremptory challenges was sustained, and the two veniremen last named served on the trial jury.

The defendant contends that the court's asserted error in overruling his challenge for cause to veniremen H. R. Pitts and D. M. Newman, thereby holding these veniremen competent to serve as jurors, erroneously required defendant to use two peremptory challenges to remove those veniremen, which resulted in forcing on the defendant the jurors Bailey and Bowen, whom the defendant desired and attempted to challenge peremptorily.

First to be determined is whether or not the veniremen H. R. Pitts and D. M. Newman were competent.

In criminal cases, whenever, after a full examination, the evidence given upon a challenge leaves a reasonable doubt in the mind of the trial judge of the impartiality of a juror, the defendant should be given the benefit of the doubt and his challenge of such juror for cause should be sustained. Crosby v. State, 90 Fla. 381, 106 So. 741; Walsingham v. State, 61 Fla. 67, 56 So. 195.

In Reynolds v. U. S., 98 U.S. 145, 156, 25 L.Ed. 244, 247, and again in Re Spies, 123 U.S. 131, 8 S.Ct. 22, 30, 31 L.Ed. 80, 90, it was said: "Upon the trial of the issue of fact raised by' a challenge to a juror, in a criminal case, on the ground that he had formed and expressed an opinion as to the issues to be tried, 'the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. * * * It must be made clearly to appear that, upon the evidence, the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the 'conscience or discretion' of the court." See also Hopt v. People of Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708.

In Olive v. State, 34 Fla. 203, 15 So. 925, 926, it was said: 'The fixedness or strength of the existing opinion is the essential test of a juror's competency, and the court should look specially to such state of mind in passing upon the question of qualification.' Then, quoting from O'Connor v. State, 9 Fla. 215, it is further said: 'If such impressions become fixed, and ripen into decided opinions, they will influence a man's conduct, and will create, necessarily, a prejudice for or against the party to whom they are directed, and should disqualify him as a juror; but if, in obedience to the laws of his organization, his mind receives impressions from the reports he hears, which have not become opinions, fixed and decided, he would not be disqualified.' Olive v. State, supra.

In O'Connor v. State, 9 Fla. 215, the following language was further quoted with approval: 'The true doctrine is, that if the juror's conceptions are not fixed and settled, nor warped by prejudice, but are only such as would naturally spring from public rumor or newspaper report, and his mind is open to the impressions it may receive on the trial, so as to be convinced according to the law and the testimony, he is not incompetent.' The language just quoted is preceded in O'Connor v. State with the further statement that 'the human mind is so constituted that it is almost impossible, on hearing a report freely circulated in a county or neighborhood, to prevent it from coming to some conclusion on the subject; and this will always be the case while the mind continues susceptible to impressions.' If a conclusion or impression of the character last mentioned--one which would readily yield to the evidence--rendered a juror incompetent, in this day of rapid and efficient transportation and communication, it would be highly difficult, if not almost impossible, to procure a trial jury in the county where a crime of any moment was committed.

In Lamb v. State, on petition for rehearing, 90 Fla. 856, 107 So. 530, 535, the existing rule was further stated in the following language: 'A person called as a juryman may have formed an opinion based upon rumor or upon newspaper statements but has expressed no opinion as to the truth of the newspaper statements, he is still qualified as a juror if he states that he can fairly and impartially render a verdict thereon in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement.' See also McGowan v. State, 89 Fla. 5, 102 So. 890.

The rule has also been considered with specific reference to the competency of prospective jurors in the following cases, in which the examination of the veniremen is set forth at length, and in all of which as strong, if not a stronger showing was made against the competency of the juror than in the case now at bar: Marlow v. State, 49 Fla. 7, 38 So. 653; English v. State, 31 Fla. 340, 356, 12 So. 689; Denham v. State, 22...