Bryant v. State

• Decision Date: 17 December 1956
• Docket Number: No. 3892,3892
• Citation: 305 P.2d 360,72 Nev. 330
• Parties: Patricia Ann BRYANT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 360

305 P.2d 360

72 Nev. 330

Patricia Ann BRYANT, Appellant, v. The STATE of Nevada, Respondent.

No. 3892.

Supreme Court of Nevada.

Dec. 17, 1956.

Samuel S. Lionel, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., George M. Dickerson, Dist. Atty., Clark County, Gordon L. Hawkins and Arthur Olsen Dep. Dist. Attys., Clark County, Las Vegas, for respondent.

MERRILL, Chief Justice.

This is an appeal from judgment of conviction of the crime of involuntary manslaughter. The only question we reach in this opinion is whether the trial court erred in denying a challenge of one of the jurors for bias.

Sec. 10946, N.C.L.1929 defines implied bias, in part, as 'having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.' Sec. 10948, N.C.L.1929, with reference to such implied bias, provides 'but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury founded upon public rumor, statements in public press, or common notoriety provided it appears to the court, upon his declaration, under oath, or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him.'

In examining the juror in question, a Mrs. Walker, the defendant's counsel brought out the fact that she had already formed an opinion as to the guilt or innocence of the defendant. Counsel then asked, 'And can you impartially and fairly judge this case by reason of those opinions which you now have?' Mrs. Walker replied, 'I suppose, yes. I don't think I could, either, the way I feel like I do about it.' The challenge was then interposed.

This was followed by examination of the juror by the trial judge and district attorney from which examination it appeared that her opinion was based upon what she had read in the newspapers and assumed the truth of what she had read and would be set aside if the evidence justified; that if, upon conclusion of the trial, the court instructed her to determine guilt or innocence from the evidence presented, she would follow the court's instructions. In conclusion the district attorney asked, 'And if the facts are presented in this courtroom under oath by witness * * * [and are] different from what you read in the newspapers would you set aside your opinion based upon the newspaper and decide it fairly and impartially; that you will act fairly and impartially upon the matters submitted to you regardless of your opinion now?' Mrs. Walker answered, 'Yes.' Thus she ultimately did declare that she could act fairly and impartially notwithstanding her opinion.

Could the court, under § 10948, accept this final declaration as superseding and rendering of no significance the earlier, spontaneous and emphatic confession of bias? In our opinion it could not.

This court in many cases has dealt with the problem of a juror's qualification to act notwithstanding the existence of an opinion as to the defendant's guilt or innocence. In many cases it has upheld the trial court's determination that the juror could and would act impartially notwithstanding such opinion. State v. Lewis, 50 Nev. 212, 255 P. 1002; State v. Milosovich, 42 Nev. 263, 175 P. 139; State v. Salgado, 38 Nev. 64, 413, 149 P. 919, 150 P. 764; State v. Casey, 34 Nev. 154, 117 P. 5; State v. Simas, 25 Nev. 432, 62 P. 242; State v. Millain, 3 Nev. 409. In none of these cases, however, did the juror express doubt as to his ability to act impartially. On the contrary, in each case he stated unequivocally and without self-contradiction that notwithstanding his opinion he could act impartially.

'The condition of the juror's mind should be determined from the whole of his examination, and doubts should be resolved in favor of the accused, as in other matters, to the end that he be tried by twelve fair and unbiased men.' State v. Williams, 28 Nev. 395, 409, 82 P. 353, 354. To the same effect: State v. Casey, supra; State v. Buralli, 27 Nev. 41, 71 P. 532.

The nature of an unqualified opinion, as that term is used in law, may well require explanation to a lay mind and an examination into the nature of a juror's opinion is anticipated under § 10948. However, such terms as 'fairness' and 'impartiality' are not peculiar to a lawyer's lexicon. A layman should be able without instruction to ascertain the state of his own mind in relation to the existence of such qualities. The inquiry demands no peculiar knowledge but only an honest search of conscience.

In this case the examination by the court and district attorney did not serve simply to explain the nature of the opinion held. In the absence of any other apparent explaination it actually seems to have persuaded the juror to change her mind as to the fact of her lack of impartiality. In State v. McNeil, 53 Nev. 428, 440, 4 P.2d 889, 892, this court stated, 'It may be true that on cross-examination his answers tended to contradict his previous statements, but we believe that his very self-contradictions do not increase his fitness as a juryman.'

With reference to the juror's declaration as contemplated by § 10948, we approve the statement of the New York Court of Appeals in People v. McQuade, 110 N.Y. 284, 18 N.E. 156, 162, 1 L.R.A. 273. 'Now, as formerly, an existing opinion, by a person called as a juror, of the guilt or innocence of a defendant charged with crime, is prima facie a disqualification; but it is not now, as before, a conclusive objection, provided the juror makes the declaration specified, and the court, as judge of the fact, is satisfied that such opinion will not influence his action. But the declaration must be unequivocal. It does not satisfy the requirement of the statute if the declaration is qualified or conditional. It is not enough to be able to point to detached language which, alone considered, would seem to meet the statute requirement, if, on construing the whole declaration together, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict. * * * Fairly construed, their declaration of their belief that they could render an impartial verdict was qualified by a doubt, and was not sure and absolute. The defendant was at least entitled to a certain and unequivocal...