Boon v. The State Of Ga.

• Decision Date: 31 March 1846
• Docket Number: No. 91.,91.
• Citation: 1 Ga. 618
• Parties: Kinchen P. Boon, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 618

Kinchen P. Boon, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 91.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

For the points decided, see the opinion delivered by the Supreme Court.

P. H. Cone and Y. P. King, for the prisoner.

Jno. M. Ashurst, Solicitor-General for the State.

By the Court—Lumpkin, Judge.

This case comes up by writ of error, to a judgment of the Superior Court of Greene county, whereby the plaintiff in error was sentenced to be hanged for murder. In it, it is alleged that errors have been committed by the Circuit Court, in affirming the constitutionality of the act of 1843, which prescribes the form of the oath to be administered in a criminal case to a juror, upon his voire dire, in allowing the State ten peremptory challenges, under the penal code of 1833; and in refusing permission to the prisoner to go before triors, for the purpose of proving by witnesses than one of the jurors was incompetent, by reason of his having formed and expressed an opinion, from hearsay or report, in regard to the guilt or innocence of the prisoner, notwithstanding be had answered in the negative both of the questions propounded by the act of 1843.

As to the constitutionality of the act of 1843, we are clear that Judge Meriwether, before whom this case was tried, was right; and we have no difficulty in affirming his judgment on that point. It is entirely competent for the Legislature to prescribe what questions shall be asked the juror upon his voire dire, for the purpose of ascertaining whether or not he be indifferent. Nothing more is attempted by this statute. Indeed, this ground having been virtually decided, during the present term, in the case of Luke Robinson vs. The Stale of Georgia, it has been abandoned in the argument.

We concur, too, with the court below, on the second objection, and hold that the penal code of 1833, allowing ten peremptory challenges to the State, is no infraction of the 5th section of the 4th article of the constitution of Georgia, which declares that "trial by jury, as heretofore used in this State, shall remain inviolate." John G. Jones vs. The State of Georgia, argued and determined at this session, has settled that point. It is conceded, that "trial by jury, as heretofore used, " means something more than a trial merely, by twelve men, regardless of the mode by which they may be selected. It protects the accused against the passage, by the Legislature, of any law which would materially trench upon his rights, or endanger bis safety, by depriving him of any of those privileges guaranteed by the common law. In 1708, when the present constitution was adopted, containing this provision, no man's life or liberty could be touched, for any offence whatever, unless found guilty on two trials, and by the verdicts of twice twelve men, or two juries, against him; that is, one to find the bill or charge to be true; and the other on the merits, to decide on full and legal proof adduced on both sides. And while we admit it is in the power of assembly to pass any act regulating merely the mode of trial by jury—provided that, in doing so, they do not destroy, or materially impair, the right—we should feel constrained to disregard any act which would deprive the citizen of the benefit of the security to which we have just alluded; and this case is put by way of illustration. The ten peremptory challenges allowed by the penal codeis, after all, but an indifferent substitute for the common-law right of passing by the whole list, until the panel was exhausted; and such was the view taken of the matter by this court, in Sealey\'s case, determined at Americas.

The other question is one of paramount interest, and Is simply this: Does the formation and expression of an opinion, by the juror, as to the guilt or innocence of the prisoner—from hearsay or report—evidence such a state of mind as to render him incompetent to try the cause? This point is one, we repeat, of groat nicety and importance, involving, as it does, the life and liberty of the citizen, on the one side, and the duty of vindicating violated law, on the other. Courts find it exceedingly difficult in practice to adhere rigidly to the rules regulating criminal trials, in Great Britain. It lias been well remarked, that amid the crowded population and busy pursuits of a community like England, divided, too, into classes, which take, perhaps, no very lively interest in each other's fate or concerns, and, it may be added, where the frequency of crime deprives it of the power to produce much public excitement, and where, moreover, comparatively few newspapers are published and circulated, it may not, perhaps, be very difficult, under these circumstances, to And a jury unaffected by rumor. But in an agricultural community like ours, of sparse population, identical pursuits, equal station, infrequent crime, and newspapers scattered far and wide, through all the length and breadth of the land, it lias always been found a matter of much delicacy and difficulty—sometimes altogether impracticable—to procure a jury entirely unaffected by rumors, touching the transactions of a criminal nature upon which they are called to pass. Hence the continual effort, both on the part of the Legislature and of the courts, to warp the ancient rules of the law upon this subject. How desirable, then, it is, for this court to adopt some course which, while it preserves inviolate the principal that a jury shall be above all exception, will nevertheless accommodate itself to the times and the country, and secure both an impartial and successful administration of the laws.

To accomplish this end. all that is necessary, in our humble opinion, is fairly to interpret and honestly to administer the law as it now stands. Our Legislature has placed this matter upon the true footing. By the Penal Code of 1833, the first question propounded to the juror was; "Have you formed and expressed any opinion, in regard to the guilt or innocence of the prisoner at the bar?" Upon answering this interrogatory affirmatively, it was considered, per sc, a principal cause of challenge, and the juror, without further inquiry, was pronounced incompetent, by the court, to sit on the trial of the cause. The Legislature, pressed by the inconvenience of making up a criminal jury, in many cases, concluded that an affirmative answer to the above question, ought not necessarily to disqualify a citizen from serving on the trial; that this opinion, which the juror is constrained to acknowledge he has expressed, might nevertheless have been. and. no doubt, often was, uttered, under circumstances which, when inquired into, would evince, to the satisfaction of all, that it constituted no sufficient objection to the juror; that, in fact, opinions were often expressed, which could not be properly said to have been formed, and which would readily yield to testimony offered in opposition to them. Consequently, the power of disposing of a juror thus summari-by, has been taken from the courts and referred to a quasi jury, composed of citizens of the county, before whom the nature and cause of the opinion shall be inquired into. And if it appear, from the answers of the juror himself, or from other testimony, that he has formed and expressed an opinion of the defendant\'s guilt, out of ill-will or personal prejudice to the prisoner, or that he has such deep impressions or fixed opinions of the defendant\'s guilt, as will probably prevent him from rendering a fair verdict, he will be found not an indifferent juror, and challenged for cause. If, on the other hand, the opinion he has expressed was a mere transient impression, so light and evanescent as not to be recollected frequently by the party himself—an opinion which takes its hue from the conversation of the last person present with whom he happens to talk, relative to the reports in circulation, evidently free from all settled bias, and resting upon no firm foundation—such a juror would do the accused justice, and would be found qualified by the triors.

The act, then, of 1813, has very properly repealed the 4Sth section of the 14th division of the Penal Code, and granted to the State and the prisoner the right to put the juror upon triors, and to prove him incompetent in the manner pointed out by law. These triors, in case the first man called be challenged, are two indifferent persons named by the court: and if they try one man and find him indifferent, he shall be sworn, and then he and the two triors shall try the next; and when another is found indifferent, and sworn, the two triors shall he superseded, and the two first sworn on the jury shall try the rest.—1 Bl. Com. 363.

This order, and this only, can be pursued. More than two triors, or more than two jurors, can in no case be sworn to try a challenge to a juryman; but in the particular case already mentioned, one juror with two triors may be sworn for this purpose.

I have been particular in pointing out this proceeding, and have rather turned aside for that purpose, inasmuch as it. is likely to become very common in practice under the decision now made.

And may not a jury, thus empaneled, well be considered, what the law says they ought to be, liberas et legales homincs?It is undoubtedly the high privilege of the accused to have their rights decided by twelve impartial men, who are free from the suspicion of partiality or prejudice. And the right of challenging every one on the list who does not come within that description, is a valuable privilege and ought to be strictly guarded. And better, after all, that ninety-nine guilty men should escape owing to the imperfection of this, like all other human systems, than that one innocent person should suffer for want of a fair trial, by an honest and unprejudiced jury. The law in its humanity presumes every man innocent until his guilt is proved. And should the public excitement against the defendant prevent a...