Collins v. State

• Decision Date: 05 February 1912
• Citation: 143 S.W. 1075,102 Ark. 180
• Parties: COLLINS v. STATE
• Court: Arkansas Supreme Court

143 S.W. 1075

102 Ark. 180

COLLINS v. STATE

Supreme Court of Arkansas

February 5, 1912

Appeal from Lee Circuit Court; Hance N. Hutton, Judge; reversed.

Judgment reversed, and cause remanded.

H. F Roleson, for appellant.

1. The court erred in ruling that Ewing was a competent juror. 45 Ark. 165; 56 Id. 382; 69 Id. 322.

2. Defendant was entitled to an instruction on manslaughter. 74 Ark. 444, 454; 162 U.S. 313; 82 Ark. 97.

Hal L Norwood, Attorney General, Wm. H. Rector, Assistant, for appellee.

1. There was no evidence upon which to predicate an instruction as to manslaughter; but, if so, the failure was harmless error.

2. Ewing was a competent juror.

FRAUENTHAL J. MCCULLOCH, C. J., dissenting.

OPINION

FRAUENTHAL, J.

The defendant John Collins was indicted for the crime of murder in the first degree, charged with killing M. E. Yarbrough. He was convicted of this crime by a petit jury, and has appealed to this court seeking a reversal of the judgment entered upon the verdict. Among the grounds assigned by him why the judgment should be reversed are the following: (1) that the court committed error by refusing to excuse for cause one E. H. Ewing, who was called as a juror to try the case; (2) because the court erred in the rulings made by it on various instructions; and (3) because there was not sufficient evidence to warrant the verdict that was returned by the jury.

In selecting the jury to try the defendant, one E. H. Ewing was summoned and called as a venireman. Upon his voir dire he made, in substance, amongst others, the following statement: that he had known the defendant about four months, and that he had heard something of the charge made against him; that he had formed and entertained an opinion as to the guilt or innocence of the defendant, but that it was based upon rumor; that he could lay aside and disregard the opinion which he had. The juror was accepted, but, before the panel of the jury was completed, he stated further upon his examination that he was in the city of Marianna upon the night of the killing, and that he there stated that he thought that the defendant ought to be lynched, and that he was willing to assist in lynching him. The defendant moved the court to declare the said Ewing incompetent to serve as a juror in the case and to excuse him for cause. His motion was overruled by the court, to which ruling exception was duly made. The defendant then challenged the juror peremptorily. Thereupon, in the further selection of the jury, the defendant exhausted all of his peremptory challenges, before the panel of the jury was finally completed. It is insisted by the defendant that the venireman Ewing was incompetent, and that the court committed error in not sustaining the motion challenging him for cause and by such erroneous ruling he was prejudiced. He contends that he was thereby forced to take a juror whom he might have challenged, as he exhausted all his peremptory challenges. In the case of Caldwell v. State, 69 Ark. 322, 63 S.W. 59, this court held (quoting syllabus): "An erroneous ruling that a juror is competent upon a challenge for cause is ground for reversal where the accused exhausted his peremptory challenges in challenging other jurors before the completion of the panel." This has been the uniform ruling of this court, and in the case of York v. State, 91 Ark. 582, 121 S.W. 1070, the same rule was again announced and reaffirmed. In that case the court said, "This court has uniformly held that if, after a court has erroneously overruled a challenge of a juror for cause, the defendant elected to challenge him peremptorily, he could not avail himself of the error unless he had exhausted his peremptory challenges," thereby holding that he could protect himself against such error, and would not be allowed to suffer by so doing if he exhausted his peremptory challenges before the completion of the jury. Langford v. State, 98 Ark. 327, 135 S.W. 895. It follows that, if the court erred in ruling that Ewing was a competent juror, the defendant was deprived of the right given to him by the law to obtain a fair and impartial trial, and he was therefore necessarily prejudiced by this ruling of the court.

In order that the defendant may have the opportunity to obtain a jury free from bias and prejudice to try him, it is provided by our statute (Kirby's Digest, § 2347) that each juror may be examined and cross examined on oath touching his qualification. In order for a juror to be competent, he should be wholly indifferent, both as to the person who is tried and the case for which he is tried. He must be free from bias or prejudice or from any fixed opinion as to the merits of the case, so that he will act with entire impartiality in deciding the questions of fact and in arriving at his verdict. The bias or prejudice which will render a juror incompetent to sit in a case may arise from various causes, and depends largely upon the facts and circumstances of each case. This bias or prejudice may spring from an opinion which has been formed by the juror concerning the merits of the case. In the cases of Polk v State, 45 Ark. 165, and Vance v. State, 56 Ark. 402, 19 S.W. 1066, it was held that an opinion entertained by a juror requiring evidence to remove it rendered the juror incompetent; but in the cases of Benton v. State, 30 Ark. 328, Casey v. State, 37 Ark. 67, and Sneed v. State, 47 Ark. 180, 1 S.W. 68, it was held that an opinion by a juror relative to the merits of a case requiring evidence to remove it does not necessarily disqualify him from sitting in the case. In the case of Hardin v. State, 66 Ark. 53, 48 S.W. 904, these conflicting decisions are fully discussed, and the ruling made in the case of Sneed v. State, supra, was there approved and adopted, which is as follows: "The entertainment of preconceived notions about the merits of a criminal case renders a juror prima facie incompetent; but when it is shown that the impression is founded on rumor and not of a nature to influence his conduct, the disqualification is removed." Since then this rule relative to the competency of a juror has been adhered to and approved. But where it appears that the opinion of the juror concerning the case is fixed and was formed from talking with witnesses who purported to know the facts, then "such opinion renders him incompetent to act impartially as a juror in contemplation of law." Caldwell v. State, 69 Ark. 322, 63 S.W. 59. The manifest purpose of an examination of a juror upon his voir dire is to obtain those persons as triers of the guilt or innocence of the accused who do not possess a fixed opinion of the merits of the case or such a feeling with regard to the accused as would influence their verdict. If it appears that the juror has such a fixed opinion or such a feeling towards the defendant or his cause, then he does not possess, in contemplation of law, the ability to render an impartial verdict. It appears that the murder with which the defendant was charged occurred in the vicinity of the city of Marianna. On the night after the killing and after the defendant had been arrested, the juror Ewing was in Marianna, and then stated that he thought the defendant ought to be lynched for the alleged crime for which he was being tried; and the juror further stated that he was willing to assist in lynching him. He had been asked whether he entertained an opinion as to the guilt or innocence of the defendant, and had answered that he did. It is true that he also stated that this opinion was based upon rumor, but he further stated that he heard some of the witnesses speak of the case and talked to one of them who, in the trial of the case, gave testimony relative to the dying declaration of the deceased as to the circumstances of the killing. He was also asked by the court "whether he felt that way now" (referring to his willingness to assist in lynching the defendant), and in answer thereto he said, "No." ...