Decker v. State

• Decision Date: 06 January 1908
• Citation: 107 S.W. 182,85 Ark. 64
• Parties: DECKER v. STATE
• Court: Arkansas Supreme Court

107 S.W. 182

85 Ark. 64

DECKER v. STATE

Supreme Court of Arkansas

January 6, 1908

Appeal from Arkansas Circuit Court; Eugene Lankford, Judge affirmed.

Judgment affirmed.

J. M Brice and W. N. Carpenter, for appellant.

1. Where a juror on his voir dire discloses that he has formed an opinion as to the guilt of the accused which it would require evidence to remove, he is incompetent to serve notwithstanding he may say that he can give the defendant as fair and impartial a trial as if he never heard of the case. 56 Ark. 402; 72 Ark. 151; 45 Ark. 170; 69 Ark. 325; 19 Ark. 165; 72 Ark. 160; 20 Ark. 50; 30 Ark. 741; 45 Ark. 168; 66 Ark. 449; 22 Ark. 150.

On the question of the credibility of witnesses and the weight robe attached to their testimony, the instruction offered by defendant correctly states the law, and the instruction given by the court errs in failing to instruct the jury to consider the manner of the witnesses testifying and their general conduct on the stand. 29 Am. & Eng. Enc. Law (1 Ed.), 768; 5 Ark. 403; 77 Ark. 334.

William F. Kirby, Attorney General, and Daniel Taylor, Assistant, for appellee.

The competency of the jurors is settled by 66 Ark. 53.

OPINION

BATTLE, J.

G. W. Decker was convicted of murder in the second degree. His punishment was assessed at five years' imprisonment in the penitentiary. He appealed.

In the formation of the jury in this case Athel Cummins was examined and answered as follows:

"Q. Have you heard anybody talk about this case who pretended to tell the facts? A. Yes, sir; I have heard a good many talk about it, and I suppose some of them have detailed the facts. Q. Did any of the witnesses talk to you about it? A. I don't know who the witnesses are. Q. Was what was said to you mere rumor, or was it the parties telling the facts as they understood them? A. Some of it was rumor, but it occurred here close to town, and I come in pretty often, and I have talked to several here in town who lived out here, who pretend to know the facts. Q. From what you have heard have you formed or expressed an opinion as to the guilt or innocence of the defendant? A. I have. Q. Will it take evidence to change or remove that opinion? A. Yes, sir; but evidence will do it. Q. Can you go into the jury box and render a verdict in this case according to the law and the evidence, notwithstanding you have an opinion now formed from what you have heard? A. I can and would. Q. You say that you have formed an opinion from what you have heard? A. Yes, sir. Q. Is it such an opinion that it will require evidence to remove or change? A. Yes, sir; but I think evidence will change it. Q. Mr. Cummins, if you are taken as a juror in this case, and the evidence should be equally or almost equally balanced as between the State and defense as to some material point, would not the opinion that you now have influence your verdict, and cause you to decide as to this point in favor of the side on which your opinion is now formed, or favors; in other words, would not the opinion which you now have balance the scales of your judgment upon the point where the evidence is equally balanced, and throw your decision in favor of the side which your opinion now favors? Would you not be influenced in such a case by your opinion now already formed? A. I don't think it would. Q. Is your opinion based on rumor, and can you lay this opinion aside, and try the case on the law and the evidence, without being influenced by this opinion? A. I don't know who are the witnesses in this case. It is rumor, and I can lay the opinion aside and try the case according to the law and the evidence, and would do it."

The court decided that he was competent. The defendant challenged him for cause, which was overruled. He then challenged the juror peremptorily, and he was excused.

G. W. Calloway, another juror, was examined and answered as follows:

"Q. Have you heard anybody talk about this case that pretended to detail the facts? A. I have heard different parties. Q. Did the parties who talked to you, or in your presence, pretend to tell how it occurred? A. Yes, sir; some pretended to know something about it. Q. When did you hear it? A. As soon as it was done. Q. Then you haven't heard it talked about recently? A. No, sir. Q. Notwithstanding the opinion, or impression, made upon you then, Mr. Calloway, could you go into the jury box and decide this case according to the law and the testimony, without regard to the impression you have? A. Yes, sir, I could. Q. Would you do it? A. Yes, sir. Q. Would you try it according to the rules of law as declared by the court? A. Yes, sir. Q. Are you acquainted with the defendant? A. Yes, sir. Q. Did you know Moncrief? A. Yes, sir. Q. How old are you? A. Sixty years old."

Cross-examination by Mr. Carpenter.

"Q. You say you have formed an opinion? A. I have, the way I heard it; if it is the way I heard it. Q. You have had the facts detailed to you the way they were stated? A. Yes, sir. Q. And you took them to be facts the way they were stated? A. I suppose they were. Q. Did you have any reason to doubt but that they were facts? A. No. Q. From that you formed an opinion? A. Yes, sir. Q. From that you have that opinion now? A. Yes, sir. Q. Is that an abiding opinion? A. No, sir; evidence could change it. Q. It would take evidence to change it? A. Yes, sir. Q. It is an abiding opinion until it is changed by evidence? A. Yes. Q. Could you go into the jury box and not be governed by it at all? A. No, sir, not at all. Q. You could lay your abiding opinion now formed from the facts, lay it aside like a blanket, and decide the case according to the testimony? A. Yes, sir. Q. But do you have an abiding opinion that it would take evidence to change you from what opinion you now have? A. Yes, sir."

The court decided that he, Calloway, was competent; and the defendant challenged him for cause, which was overruled, and he was likewise challenged peremptorily, and excused.

Were these persons competent to serve as jurors in this case?

In Hardin v. State, 66 Ark. 53, 48 S.W. 904, this court held that "a juror in a criminal case who states that, from rumor and 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 defendant a fair and impartial trial, is not incompetent, if it does not appear that he entertained any prejudice against defendant." Mr. Justice RIDDICK, in delivering the opinion of the court in that case, said: "Now, it is a matter of common knowledge that we all form opinions from rumor, and from reading newspapers, which we retain until we hear another version of the matter, or until time, or forgetfulness, or something, has removed them from our minds. If one, called for examination as a juror, should have an opinion of that kind concerning the case, however slight the importance he attached to it, he might yet truthfully say that, if put on the jury, it would remain on his mind until he heard something to the contrary--in other words that it would take evidence to remove it. It does not by any means follow that he would, if placed on the jury, be influenced by such opinion, or allow it to take the place of evidence. If he possessed ordinary intelligence, he would know, before being admonished to that effect by the presiding judge, that the rumor he had heard or the statement he had read in the newspapers was not evidence upon which he could act as a juror. He would know also that such rumors and statements are often misleading, and, if he was fair-minded, and had no direct interest in the prosecution or defense, he would neither be governed nor influenced by such opinions in the trial of the case."

Again he says: "A sounder rule, we think, was afterwards laid down by Judge Smith himself in Sneed v. State, 47 Ark. 180, 1 S.W. 68, when, in speaking of a juror who had answered that he had an impression with regard to the case which it would take evidence to remove, he said: '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, this disqualification is removed. '"

In Sullins v. State, 79 Ark. 127, 95 S.W. 159, the same doctrine was stated. In that case the court said: "The presumption should be that, when one is placed on the jury and hears direct testimony as to the facts of a case, his previous opinion, formed from rumor merely, will be disregarded entirely, and the case tried on the evidence only. If, however, the examination shows that the opinion of the juror is a fixed opinion, and one not likely to yield to the evidence, and of a kind to affect his judgment of the case, he should be discharged, whether his opinion was formed from rumor or not."

The opinions of Cummins and Calloway were based upon what they had heard. They could trace them to no reliable source. They were based upon no verified reports, but upon what to them was rumor, which, under the statutes of this State, is not a cause for challenge. Such opinions, when seen to be contrary to the facts, it is presumed, cease to have any effect upon the mind of an unbiased juror. No intelligent, unbiased mind could longer entertain them when it sees their foundation is not sustained by the evidence. For this reason rumors are not considered a cause of challenge.

We see no good reason for reversing the rulings of the circuit court as to the competency of the jurors. As said in Hardin v. State, 66 Ark. 53, 48 S.W. 904 "As the trial...