Caldwell v. State

• Decision Date: 18 May 1901
• Citation: 63 S.W. 59,69 Ark. 322
• Parties: CALDWELL v. STATE
• Court: Arkansas Supreme Court

63 S.W. 59

69 Ark. 322

CALDWELL v. STATE

Supreme Court of Arkansas

May 18, 1901

Appeal from Independence Circuit Court, FREDERICK D. FULKERSON Judge.

Judgment reversed and cause remanded.

W. S Wright and J. C. Yancey, for appellant.

It was error not to sustain appellant's challenge for cause against a juror who had formed an opinion of the case, as had Leggett. 45 Ark. 170; Const. Ark. art. 2, § 10; 56 Ark 402. Cf. 66 Ark. 53; 12 Am. & Eng. Enc. Law, 354, and note. It was error to permit a comparison of the inscriptions on the envelopes and the letters with the writing in dispute. 32 Ark. 337; 7 Abb. N. Cas. 98; 56 Md. 439; 5 Ala. 747; 2 Heisk. 207; 3 Baxt. 45; 78 Ind. 64; 9 Am. & Eng. Enc. Law, 288; 3 Russ. Cr. 361; 36 Am. Dec. 431; 1 Best, Ev. § 238; 16 S.W. 557; 3 Russ. Cr. 361; 16 S.W. 559; 58 Ark. 242. It was error to give the sixth instruction asked by the state, because it cast upon appellant the burden of negativing one of the elements of the crime charged. 62 Ark. 478; 1 Bish. Cr. Law, § 496; Clark's Cr. Proc. 539; 62 N.W. 502; 30 S.W. 802.

G. W. Murphy, Attorney General, and Silas D. Campbell and Robert Neill, for appellee.

Appellant not having shown that he was in any way prejudiced by the ruling as to the competency of the juror Leggett, and the record in no way disclosing any attempt to challenge any subsequent juror for cause or peremptorily, no reversible error was committed. 9 Ark. 164. Cf. 56 Ark. 404; 19 Ark. 156; 59 Ark. 132. But the ruling of the court was not erroneous. 66 Ark. 53; 4 L. R. A. 601; 21 So. Rep. 378; 71 N.W. 444; 51 P. 879. There was no error in the evidence as to the writing. 58 Ark. 250; 67 Ark. 48; 43 Ark. 391; 68 Ark. 531. The sixth instruction was not erroneous. 2 Am. & Eng. Law, 657, note; Cf. 62 Ark. 47.

OPINION

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. 165, 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 on such declarations." This case was expressly followed and reaffirmed by this court in Vance v. State, 56 Ark. 402.

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 is 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 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." 17 Am. & Eng. Enc. Law (2d Ed.), 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." 17 Am. & Eng. Enc. Law (2d Ed.), 1188. 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 overruling a challenge for cause is available as a ground for reversal, if the objecting party does exhaust his peremptory challenges before the impaneling of the jury, is stated and applied in a number of cases" (among them cases in our own state). 17 Am. & Eng. Enc. Law, (2d Ed.), 1188.

It is, of course, no ground of complaint if the accused has not exhausted his peremptory challenges before the panel of the jury is completed, as the accused might correct the error by peremptory challenge. Meyer v. State, 19 Ark. 156; Benton v. State, 30 Ark. 328; Mabry v. State, 50 Ark. 492, 8 S.W. 823; and other cases in our reports. In Benton v. State, supra, it is said (in the syllabus): "If, after the court has erroneously overruled the challenge of a juror for cause, the defendant elects to challenge him peremptorily, and the record shows he did not exhaust his peremptory challenges, he cannot avail himself of the error." This, of course, necessarily means that, if the accused had exhausted his peremptory challenges, he could avail himself of the error; otherwise he could not. We think that the necessary implication from the cases in our court upon this question is that the erroneous ruling that a juror is competent upon a challenge for cause, where the accused has exhausted his peremptory challenges before the panel is completed, may be availed of by him, and is cause for reversal.

There are several grounds urged in the motion for new trial, the most serious of which, according to the appellant's contention, is the giving of instruction numbered 6 for the state. It reads as follows: "No. 6. If the jury believe from the evidence beyond a reasonable doubt that the defendant obtained...