Caldwell v. State

• Citation: 63 S.W. 59
• Parties: CALDWELL v. STATE.
• Decision Date: 18 May 1901
• Court: Supreme Court of Arkansas

63 S.W. 59

CALDWELL v. STATE.

Supreme Court of Arkansas.

May 18, 1901.

Appeal from circuit court, Independence county; Frederick D. Fulkerson, Judge.

Lee Caldwell was convicted of seduction, and he appeals. Reversed.

W. S. Wright and J. C. Yancey, for appellant. Geo. W. Murphy, Atty. Gen., S. D. Campbell, and Robert Neill, for the State.

HUGHES, J.

The appellant was indicted for seduction, entered a plea of not guilty, was tried, convicted, and sentenced to confinement in the penitentiary for three months, and to pay a fine of $65, as assessed by the jury in their verdict. He filed his motion for a new trial, which was overruled, and he excepted and appealed to this court.

In making up a jury to try the case, Russ Leggett was sworn and examined as to his qualifications to serve as a juror, and stated that he had heard different ones talk about the case, and that they purported to know the facts; that he had formed and expressed an opinion; that it would require evidence to remove that opinion; that he had talked with Dr. Kennerly, a witness for the state; that that opinion was with reference to the guilt or innocence of the defendant. He was pronounced by the court a qualified juror. The appellant objected and asked that he be excused for cause. His objection was overruled and his request denied by the court, and he peremptorily challenged the juror and excepted to the ruling of the court. H. H. Martin, a talesman, was sworn, examined, and qualified as a juror, and was taken by the state. The appellant did not excuse said Martin, having exhausted his peremptory challenges. He did not offer to challenge him peremptorily or for cause. Was the juror Leggett competent? He had talked with various persons about the case, who purported to know the facts, and with Dr. Kennerly, a witness for the state, though he did not know at the time that Dr. Kennerly was a witness. He had formed and expressed an opinion as to the guilt or innocence of the accused, which he stated it would require evidence to remove. In Polk v. State, 45 Ark. 170, this court said: "That a juror has formed any opinion in such a case renders him prima facie incompetent, and it is for the state to show that such opinion is based on rumor, and not of a nature to influence his conduct; but one who leaps in advance of the evidence and the law, and settles in his own mind the question of guilt, is not fit to be a juror in the cause. The juror must be indifferent between the state and the prisoner. The burden of eradicating preconceived opinions upon the merits ought not to be cast upon either party. The fact that the jurors further said that they could try the case impartially was entitled to no consideration, in the face of their admissions that their minds were preoccupied by impressions of the case. No reliance is to be placed in such declarations." This case was expressly followed and reaffirmed by this court in Vance v. State, 56 Ark. 402, 19 S. W. 1066. In the case of Hardin v. State, 66 Ark. 53, 48 S. W. 904, the ruling in Polk v. State was somewhat modified, and it was said (quoting from the syllabus): "A juror in a criminal case who states that, from rumor and from reading the newspapers, he has formed an opinion as to defendant's guilt, which it will require evidence to remove, but that for the purpose of the trial he can disregard such opinion, and give the defendant a fair and impartial trial, is not incompetent, if it does not appear that he entertained any prejudice against the defendant." In this case at bar the opinion which the juror had formed was as to the guilt or innocence of the accused, and was formed from talking with witnesses who purported to know the facts. While the mere fact that an opinion by a juror as to the guilt or innocence of the accused on trial for a criminal offense does not itself disqualify the juror, yet if it appears that such opinion appears to be fixed, and is founded upon what the witness understands to be the facts in the case, such opinion renders him incompetent to act impartially as a juror, in contemplation of law. "In a few cases it is simply stated, without reference to the question of exhaustion of peremptory challenges, that one cannot complain of a denial of a challenge for cause if he thereafter peremptorily challenges the juror. In these cases failure to state that the challenges were not exhausted was probably a mere inadvertence." "Exhaustion of Challenges not Considered," 17 Am. & Eng. Enc. Law (2d Ed.) p. 1189, and cases cited. "In some cases it is held that the mere exhaustion of his legal number of peremptory challenges will not give to a complaining party a right to a reversal, but that in addition he must show that an objectionable juror was impaneled, owing to the want on his part of another peremptory challenge; or, as it may be otherwise expressed, the complaining party must have made or offered to make a challenge to a juror subsequently called." 27 Am. & Eng. Enc. Law (2d Ed.) p. 1198. Such, we think, was the condition of the juror Leggett. It was error to hold that he was a competent juror. But he was peremptorily challenged by the accused, and did not sit upon the jury, and the accused exhausted his peremptory challenges. Was the accused prejudiced, inasmuch as he made no objection to Martin, the talesman, who came after? There are cases which hold, with much apparent force of reason, that, when Leggett was peremptorily challenged after being pronounced competent on a challenge for cause, as he did not sit on the jury no harm was done. But the accused says that he was compelled to challenge the objectionable juror peremptorily, when his challenge for cause should have been sustained, and that he was thus forced to take some juror that he might have challenged, as he exhausted his peremptory challenges. This position is answered in the fact that no objection, peremptorily or otherwise, was made to any other juror, and that all the accused was entitled to was a fair and impartial jury. "That such error in...