Hanks v. State
| Citation | 21 Tex. 526 |
| Parties | F. M. HANKS v. THE STATE. |
| Decision Date | 01 January 1858 |
| Court | Supreme Court of Texas |
Where the defendant pleaded guilty, and a member of the jury which assessed the fine, upon meeting with the person upon whom the assault was committed, for which defendant was indicted, before the trial, said to him: Held to be good cause for granting a new trial where the prejudice of the juror was unknown to the defendant until after the trial. 6 Tex. 343;9 Tex. 24.
A party is not precluded from making this objection because he did not examine the juror upon his voir dire as to his prejudice unless gross negligence is shown on his part.
Appeal from Henderson. Tried below before Hon. R. A. Reeves.
Indictment for assault and battery. The facts are stated in the opinion.
R. F. Dunn, for appellant, cited Graham, New Trials, 374-78-80-407-411-12.
Attorney General, for the state, cited art. 578, C. Code; Whent. Crim. Law, sec. 3153, 4 ed.; 8 Brown and Cross, 417; 2 M. and R. 406; 7 Watts and Serg. 420; 5 Tex. 312;10 Tex. 808.
This is an application to set aside a verdict and grant a new trial.
The defendant had pleaded guilty to an indictment charging him with an assault and battery with a cow-hide upon the person of T. E. Pelham. The jury assessed the fine at eight hundred dollars.
Among other things, the appellant complains that his case was prejudged by one T. R. Boze, who sat upon the jury in assessing the fine. In support of this ground, in addition to his own affidavit, George S. Downs swore that he heard said Boze, upon meeting with Pelham before the trial, say to him: This conversation evidently had reference to the trial of this cause, and, if such had not been the case, Pelham, or the juror himself, might have given the proper explanation.
This expression of the juror indicated something more than that he felt that indignation for an outrageous act which should swell the bosom of every good citizen. It manifested, first, that he was in possession of information upon the subject satisfactory to himself; secondly, he had made up his opinion that Pelham was an injured man, and thirdly, he had resolved to make himself active, to the full extent of his power on the jury, to redress his injury. This state of mind was not sought to be established by a casual remark idly spoken to any one indifferently, but was communicated to Pelham himself, who would most likely be consulted by the district attorney in the selection of the jury. It does not arise out of any previous conversation between friends calculated to produce excitement or unguarded expressions; but it is a volunteer espousal of his cause tendered, upon introducing himself, to a stranger. It can hardly be said that the mind of a juror is unbiased by prejudice who permits his feelings to be so far enlisted as to make him the avowed and proffered champion of another's cause. Every criminal has a constitutional right to be tried, and punished, if guilty, by impartial jurors. While utter indifference to wrong is not the true standard of impartiality, neither is the enlisted advocacy of one side, however just it may be. Whart. Am. Crim. Law, 3d ed. sec. 3152 and cases cited; Ramadge v. Ryan, 9...
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