Bradford v. State

• Decision Date: 13 December 1860
• Citation: 15 Ind. 347
• Parties: Bradford v. The State
• Court: Indiana Supreme Court

15 Ind. 347

Bradford v. The State

Supreme Court of Indiana

December 13, 1860

APPEAL from the Vigo Circuit Court.

Judgment affirmed.

B. B Moffatt, for appellant.

W March and I. N. Pierce, for the State.

OPINION

Hanna, J.

Indictment for murder. Plea not guilty. Trial: verdict of guilty, and that the prisoner suffer death.

The points presented are in reference to the competency of jurors who sat on the trial of the case.

It is urged that two jurors, Brown and Miller, were incompetent, because of previously formed and expressed opinions as to the guilt of the defendant.

It is denied by the State that Miller formed or expressed an opinion. It is admitted that Brown had; but insisted that it was from rumor merely, and not from hearing the evidence, or from a knowledge of the facts.

Affidavits and counter affidavits were received as to the alleged incompetency.

Moffat and Drake, attorneys for appellant, state that each of said jurors were examined as to whether they had formed or expressed an opinion, &c., and that each answered that he had not, and for that reason they were accepted upon the jury.

Baily states that on the day defendant was being brought to Terre Haute on the cars, witness told Brown the circumstances and facts that led to his arrest, and Brown said he ought to be hung. Brown was shown to be the editor of a newspaper, and an article shown to have been written and published by him, was put in. Grubbs and Lee swear to having held conversations with Miller on the day of the preliminary examination of defendant at the court house in Terre Haute, Grubbs before and Lee after the same, in which he expressed the opinion that defendant ought to be hung, or ought to be taken out and hung.

Brown swears that he did not, upon the question being propounded to him, answer that he had not formed an opinion; but that he had formed an opinion from rumor; was not present at the examination, and had not heard the evidence, and was told by Moffatt to take his seat in the box.

Allen, one of the jurors, swears that he heard the question put to Brown, and particularly observed his response, which was in substance, that he had not formed or expressed any opinion, only from rumor; that he had published rumors of the transaction, but not his individual opinion; that some fifty persons were examined as to their competency, &c.

Persons, an excused juror, swears that his attention was particularly directed to Brown's answer, which was that he had not formed or expressed an opinion of the guilt or innocence of the defendant, only from rumor; had published some account of the preliminary trial, but was not present at it. Moffatt accepted Brown, or told him to take his seat.

Miller swears that he stated, in response to the question, that he had heard some flying reports, but had not heard the evidence, &c.; that he was not present at the examination before the committing magistrate, nor was he at the court house on that day; that he does not know Grubbs, did not see him on the day of the examination, nor say to him, or to any other person, that defendant ought to be hung; that he had not formed or expressed an opinion, nor had he ever seen said Bradford until he was brought into Court for trial.

Purdy states that the preliminary examination closed about half past five o'clock in the afternoon.

Burton and Reiss state that Miller was with them at the America Saloon from four o'clock, or a little later, until after night of the day of the preliminary examination.

We have examined the article published by Brown, and can not perceive that there is any expression of opinion of guilt or innocence in that transaction; but there is a general expression as to the appearance, bearing, and physiognomy of the defendant.

It is argued that, under our statute, a juror who has formed or expressed an opinion as to the guilt or innocence of a person charged with crime, is incompetent to sit as a trier; totally and absolutely so. And it is earnestly urged that the statute is, in that respect, different from others anterior thereto, and that it precludes the Court from the exercise of any discretion in accepting or rejecting a juror, who states that he has formed or expressed an opinion; and that it matters not as to the source from which the information upon which the opinion was so formed was derived.

The section of the statute upon which this conclusion is based is as follows:

"Sec. 84. When the jurors are called, each may be examined on oath by either party, whether he has formed or expressed an opinion of the guilt or innocence of the defendant; and upon such examination and other questions put by leave, the court may determine upon the competency of the juror. Any juror is incompetent who has formed or expressed an opinion of the guilt or innocence of the defendant." 2 R. S., p. 372.

It is insisted that the last sentence of the section is a positive declaration of the legislative will as to the competency of jurors.

It appears to us that the whole section should be considered in construing any part of it, just as all parts of a statute are examined in giving a construction to any particular portion thereof. Viewed in that light, it would seem as if the examination might be waived by the defendant, indeed, by the parties; and the Court might then, without any examination, direct them to be sworn as jurors to try the case. If this should take place, we can not believe that, unless something extraordinary should be developed, the Court would set aside the verdict, upon the fact being shown that a juror or jurors had formed and expressed opinions, &c. In our opinion the proper construction to be placed upon this statute is, that, in ordinary cases, the parties must avail themselves of the right to examine and challenge jurors, either peremptorily or for cause; if for cause, the Court, after hearing the examination, &c., exercises a sound, legal discretion in determining as to the competency of the juror. One of the disabilities of a person called is the formation or expression of an opinion, &c. It is so declared by the statute. The legal doctrine thus embodied in the statute had always been acted upon in practice in this State. To determine whether the sound, legal discretion vested in the judge, has been abused or properly exercised, we must, in each instance, examine the question whether the opinion of the person offered had been formed upon such information, or information derived from such a source, as would probably make such an impression as might influence him, after hearing the facts detailed on the trial. In determining this question, the Court below, and this Court, should be governed by the legal rules applicable in such case, and which have obtained in reference to like cases, before the enactment of the statute.

An opinion based upon mere rumor, not from a knowledge of the facts, from hearing evidence, or from conversing with witnesses, unless firmly fixed, has been repeatedly held to be no cause for a peremptory challenge, before the passage of this statute. M'Gregg v. The State, 4 Blackf. 101; Van Vacter v. McKillip, 7 id. 578; and since its passage, Morgan v. Stevenson, 6 Ind. 169; Rice v. The State, 7 id. 336.

We see nothing in the circumstances of this case to justify us in departing from these salutary rules.

If this statute should receive the construction contended for by the appellant, and parties should, without examination, accept a jury the members of which, it should afterward be shown, had formed an opinion, a very serious question might be raised as to whether a man had been placed in jeopardy, at all, who had been tried and acquitted by such jury; for, according to the conclusion of the appellant, it would not be a jury that could legally pass upon the case.

The affidavits and exhibits presented to the Court, upon the alleged incompetency, raised questions of fact for the determination of that Court. We are not prepared to say, in view of the doctrines above advanced, and the rules of evidence which have been heretofore adhered to, as to the admission of testimony in like cases, that the decision of the Court upon those questions was erroneous.

Two men testify that Brown stated positively he had not formed or expressed an opinion, &c. Brown and two others are equally as positive that his answer was in accordance with his statement in his affidavit. Many persons were examined upon the point of competency, and, possibly, that may account for the misunderstanding as to the answer of the juror. In addition to all this, the judge who decided the motion for a new trial, had heard the examination as to the competency of the juror.

As to Miller, there is no dispute about his answer to the question. The point raised was as to the truth of that answer. Two persons, Grubbs and Lee, swear to conversations with him; both locate the same at the court house; the former, at the adjournment of the examination from the forenoon until the afternoon, and the latter, after the examination was over. Miller's affidavit is directly contradictory to these two, not only as to the conversations, but he declares he was not, on that day, at the court house, never saw the prisoner before, &c., and did not know Grubbs. To support him, Purdy swears that the examination closed about half after five Reiss and Bu...