Burnett v. State

• Decision Date: 30 June 1928
• Docket Number: Criminal 675
• Citation: 268 P. 611,34 Ariz. 129
• Parties: MELVIN BURNETT, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

268 P. 611

34 Ariz. 129

MELVIN BURNETT, Appellant, v. STATE, Respondent

Criminal No. 675

Supreme Court of Arizona

June 30, 1928

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Messrs Clark & Clark and Mr. R. B. Westervelt, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Frank J. Duffy Assistant Attorney General, for the State.

OPINION

LOCKWOOD, J.

Melvin Burnett was informed against in the superior court of Yavapai county for the crime of murder. He was tried and convicted, the jury fixing the penalty at imprisonment for life, and, from the verdict, judgment, and order overruling the motion for a new trial, he has appealed to this court.

There are some six assignments of error which we shall discuss in their order. The first is that the court erred in overruling the challenge for cause of the juror Mercer. It is contended that this juror was disqualified because he had formed an opinion as to the guilt or innocence of the defendant, and in support of this defendant cites the case of Stephens v. State, 20 Ariz. 37, 176 P. 579, in which we stated:

"We conclude that a person who has formed and expressed an unqualified and fixed opinion as to the guilt or innocence of the accused in a criminal case is disqualified to serve as a juror in such case."

It is one of the cardinal principles of criminal law, expressed in almost every Constitution, and declared repeatedly by the courts, that the accused in a criminal prosecution is entitled to a trial by an impartial jury. The general principle, of course, is fundamental, and its mere statement is sufficient to convince any reasonable person that it is absolutely essential to the administration of real justice. The question, however, as to what is meant by an "impartial" jury has often been under consideration, and on that point different views have from time to time obtained. One of the first cases in which this matter was discussed was United States v. Burr, Fed. Cas. No. 14,692g, wherein Chief Justice MARSHALL said:

"The great value of the trial by jury certainly consists in its fairness and impartiality. Those who most prize the institution, prize it because it furnishes a tribunal which may be expected to be uninfluenced by an undue bias of the mind. I have always conceived, and still conceive, an impartial jury as required by the common law, and as secured by the Constitution, must be composed of men who will fairly hear the testimony which may be offered to them, and bring in their verdict according to that testimony, and according to the law arising on it. This is not to be expected, certainly the law does not expect it, where the jurors, before they hear the testimony, have deliberately formed and delivered an opinion that the person whom they are to try is guilty or innocent of the charge alleged against him. The jury should enter upon the trial with minds open to those impressions which the testimony and the law of the case ought to make, not with those preconceived opinions which will resist those impressions. . . .

"Were it possible to obtain a jury without any prepossessions whatever respecting the guilt or innocence of the accused, it would be extremely desirable to obtain such a jury; but this is perhaps impossible, and therefore will not be required. The opinion which has been avowed by the court is, that light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him. Those who try the impartiality of a juror ought to test him by this rule. They ought to hear the statement made by himself or given by others, and conscientiously determine, according to their best judgment, whether in general men under such circumstances ought to be considered as capable of hearing fairly, and of deciding impartially, on the testimony which may be offered to them, or as possessing minds in a situation to struggle against the conviction which that testimony might be calculated to produce."

The general principle thus laid down by the great Chief Justice has never been questioned seriously. It is in its application that the difficulty comes. For many years some of our courts, in their desire to be absolutely sure that the juror should be impartial, have apparently held that any knowledge whatever of the purported facts in the case, or belief as to the guilt or innocence of the defendant, was sufficient to disqualify a prospective juror. Such a rule might perhaps have secured a suitable jury in a day when means of communication were difficult, and when information was not easily disseminated, so that many intelligent men were unfamiliar with even important events which occurred out of their immediate neighborhood. Conditions, however, have changed vastly, and in the present day the details of all crimes of any importance or of a striking nature are certain to be broadcast through the press, and read, discussed, and commented on by practically every man of even mediocre understanding in the vicinage from which the jury to try the case must necessarily be drawn. An interpretation of the rule in the manner last stated would necessarily mean that to-day practically all men of average attainments would be automatically disqualified from jury service in any criminal case of importance, and a defendant would be tried by men representing the lowest level of intelligence found in the community. Such a result would work as great an injustice as would be a trial by jurors who had already prejudged the case, and the more modern interpretation is well expressed in section 1024 of the Penal Code of Arizona of 1913, which reads as follows:

"When a challenge is made for the cause mentioned in subdivision thirteen of the preceding section, the fact that a person called as a juror has formed an opinion or impression based upon rumor, or upon newspaper statements (about the truth of which he has expressed no opinion) shall not disqualify him to serve as a juror in such case, if he shall upon oath state that he believes he can fairly and impartially render a verdict therein, in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement."

The necessity for the practical application of the statute generally arises in a case where the situation may be illustrated as follows: A juror on voir dire states, in substance:

"Yes, I have reas about the case; I have heard the matter discussed in a general way, by others who have read about it. I have formed an opinion as to the conclusions to be drawn from what I have read and heard. I have no opinion, however, as to whether what I have read and heard represents the true facts in the case, and, if called as a juror, I can and will lay aside everything, and return a verdict solely upon the evidence as it appears during the trial."

The true rule is well laid down in the case of O'Mara v. Commonwealth, 75 Pa. 424, wherein the court said:

"Taking all that the juror Hugh N. Tingley said in his examination, his opinion fell into the latter class. It was not a prejudgment, or an opinion made up from evidence known to be authentic and such as would be given in the trial; but it was one founded only on hearsay, and ready to give way to the truth as it would appear in the evidence. He said he had read accounts of this matter in the papers. Heard it talked about some. Formed an opinion he thought. That opinion would follow him into the jury box, if he had no evidence against it. Would influence him if he had no other evidence. The remainder of the examination in chief is but a repetition of the same thought. In his cross-examination, he said he had not formed an opinion from what he had heard, that would influence him unless the evidence sustained it. And in reply to a question of the judge, whether he could enter the jury box and decide the guilt or innocence of the prisoners upon the evidence, and that alone, uninfluenced by any impression or opinion he had formed; he said he could, and that the opinion would not influence or bias his judgment. ...