Folkes v. State

• Decision Date: 30 June 1919
• Docket Number: 4 Div. 596
• Citation: 82 So. 567,17 Ala.App. 119
• Parties: FOLKES et al. v. STATE.
• Court: Alabama Court of Appeals

82 So. 567

17 Ala.App. 119

FOLKES et al. v. STATE.

4 Div. 596

Court of Appeals of Alabama

June 30, 1919

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

The defendants, Luther Folkes and Joe Baxley, were jointly indicted and tried for the murder of S.P. Saunders by shooting him with a gun, convicted of murder in the second degree, and they appeal. Reversed and remanded.

The facts in reference to the juror Hall sufficiently appear. The witness Jeter was asked, "Have you a fixed opinion as to the guilt or innocence of the defendants that would bias your verdict?" and he answered, "Yes, sir." He was then asked, "If you were selected as a juror, could you set aside that and decide the case solely on the testimony in the case?" He answered, "Yes, sir." He was then asked, "Would any expression that you have heretofore made of what your idea was of the guilt or innocence in any way influence you?" He answered "No, sir." Defendants then asked permission to ask him the following questions: "Would not your opinion that you have formed from what you have heard about the case coupled with any expression that you have made on the streets about the case, have to be overcome by the testimony before you could give a verdict based entirely upon the testimony in the case?" The court refused to permit the question to be asked, and the court asked the juror the following question: "If you are selected as a juror, could you make up your mind as to the guilt or innocence of the defendants based solely upon the testimony, and not based upon any expression or opinion that you have made or formed?" and the juror answered, "Yes sir."

Lee &amp Tompkins and Farmer, Merrill & Farmer, all of Dothan, for appellants.

J.Q Smith, Atty. Gen., for appellee.

BROWN P.J.

That a juror "has a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict," is a cause for challenge by the defendant, and it is the duty of the trial court, without aid of counsel, to ascertain whether jurors called for the trial of cases of this character are subject to challenge for cause. Code 1907, § 7276; Hammill v. State, 90 Ala. 577, 8 So. 380; Jackson v. State, 77 Ala. 18; Bales v. State, 63 Ala. 30; Hawes v. State, 88 Ala. 37, 7 So. 302; O'Rear v. State, 188 Ala. 71, 66 So. 81.

The juror Hall, on the voir dire examination, in response to the question propounded by the court, "Have you a fixed opinion as to the guilt or innocence of the defendant that would bias your verdict?" answered in the affirmative; and, on further examination, said that he did not know anything about the facts; that he had never heard the testimony; that it was from rumor that he had made up his mind. He was then asked by the court:

"In the event the testimony was different from what you have heard it was, and you were on the jury, would you set aside your opinion and make up your mind from the testimony alone?"

To this question the juror answered, "Yes, sir." On this showing, without more, the court refused to allow the defendants to challenge this juror.

In Jackson v. State, supra, it was said:

"While a juror should be above suspicion of bias or partiality, and while it is far preferable that no juror should have any previous opinion, such is impracticable, when crime necessarily becomes, more or less, the subject of discussion and common conversation. When, however, such previous opinion is so fixed that it will bias the verdict on the rumored facts being proved, the juror is not free to impartially consider and weigh the evidence pro and con, or to make an unbiased application of the law, as pronounced by the court, to the facts, if proved as heard. A juror, having such fixed opinion, is not the impartial juror guaranteed by the Constitution." (Italics supplied.)

In Long v. State, 86 Ala. 43, 5 So. 448, the court, in speaking of the juror there under consideration, said:

"Had this juror answered that he had a fixed opinion that would bias his verdict, this should probably, and ordinarily would, have terminated further inquiry. In such case, the belief of the juror that he could render an impartial verdict, uninfluenced by his opinion, is not conclusive; for such is the organization of the human mind that a person possessed of a fixed opinion cannot readily put it aside and try a case de novo and impartially."

In Ragsdale v. State, 134 Ala. 24, 32 So. 674, while the juror in the first instance answered the statutory question in the affirmative, after explanation and further interrogation by the court, he was again asked the question, "Have you a fixed opinion as to the guilt or innocence of the defendant that would bias your verdict," and answered, "No, sir; I would be governed entirely by the evidence in the case."

In Jarvis v. State, 138 Ala. 17, 34 So. 1025, neither of the jurors there in question stated that they had a fixed opinion that would bias their verdict.

In Jones v. State, 181 Ala. 63, 61 So. 434, the jurors in question did not state that they had a fixed opinion that would bias their verdict. "Roemer answered that he had a fixed opinion, but that he would be governed by the evidence in the case, and the evidence alone and the law given by the court."

These are the leading cases in this state touching the question under consideration, and none of them go to the extent of holding a juror competent who has answered in the affirmative that he has a fixed opinion as to the guilt or innocence of the defendant that would bias his verdict, on the mere further statement that "in the event the testimony was different from what he had heard it was, and he was on the jury, he would set aside his opinion and make up his mind from the testimony." Non constat, if the testimony given on the trial was in accord with what the juror had heard, the case of the defendant, so far as such juror is concerned would be prejudged, and he would be denied the constitutional right of a fair trial by an impartial jury. To afford such trial, the minds of the jurors should be in such state of freedom that they can give to the accused, no matter what the evidence may show, the benefit of the presumption of innocence, as well as the benefit of a reasonable doubt arising from the evidence after considering the evidence in the light and under the influence of...