Hardin v. State

• Decision Date: 17 December 1898
• Citation: 48 S.W. 904,66 Ark. 53
• Parties: HARDIN v. STATE
• Court: Arkansas Supreme Court

48 S.W. 904

66 Ark. 53

HARDIN v. STATE

Supreme Court of Arkansas

December 17, 1898

Appeal from Van Buren Circuit Court, E. G. MITCHELL, Judge.

Judgment reversed and cause remanded for new trial.

J. H Harrod, for appellant.

It was error to admit a juror who had formed an opinion as to the guilt or innocence of the accused, such that it would "take evidence to remove." 45 Ark. 165; 56 Ark 402. A confession, to be admissible, must be given freely without either "the flattery of hope or the torture of fear" or any circumstance of official indictment. 50 Ark. 305.

E. B. Kinsworthy, attorney general, for appellees.

A juror who has formed an opinion merely from rumor and newspaper reading is competent. 13 Ark. 720; 19 Ark. 156; 30 Ark. 328; 47 Ark. 180; 84 Mo. 278. Whether or not confessions are voluntary is a question for the court, and its ruling will not be disturbed on appeal, unless it arbitrarily abuses its discretion. 84 Mo. 278; 28 Ark. 121; 28 Ark. 531; 50 Ark. 305. The court's finding that the confession was voluntary is supported by the law. 108 Mass. 464; 108 Mass. 285. The evidence shows it to have been so. 19 Ark. 156; 50 Ark. 501; 35 Ark. 47. Mere artifice in obtaining it does not render a confession inadmissible. 74 Mo. 128; 84 Mo. 278; 3 Brews. (Pa.) 461.

RIDDICK, J. BUNN, C. J., concurs.

OPINION

RIDDICK, J.

The appellant, W. H. Hardin, was indicted by the grand jury of Van Buren county for the murder of Hugh Patterson. Patterson and his family were at supper on the 13th of December, 1897, when two masked men entered his house, and made an assault upon him, for the purpose of robbing him of his money. Patterson and his son resisted, and in the struggle which followed he was killed, and the robbers fled. Afterwards the appellant, Hardin, and one Lee Mills were suspected of the crime and arrested. Hardin made a confession, and also testified against Mills. Mills was indicted, convicted of murder, and executed. Hardin was then placed on trial, and he also was found guilty of murder in the first degree, and sentenced to be hung.

This appeal of Hardin brings two questions before us for consideration. The first relates to the ruling of the circuit court upon the challenge of defendant to certain jurors. These jurors had formed opinions from rumor and from reading newspapers, and also one or two of them had heard statements of persons who had attended the investigation before the coroner's jury. In the course of their examinations, each of them stated that it would take evidence to remove his opinion, but that, for the purpose of the trial, he could disregard such opinion, and give the defendant a fair and impartial trial upon the law and evidence, uninfluenced by the opinion he then entertained. It did not appear that either of them entertained any prejudice against the defendant. Upon further examination it seems that each of them also retracted or modified the statement that it would require evidence to remove the opinion held by him.

But, if we concede the contention of counsel for appellant to be true, that the jurors did entertain opinions of the merits of the case which it would require evidence to remove, does it follow that the circuit court erred in holding them to be competent? An examination of the decisions of this court rendered since the adoption of the code, which now regulates the method of selecting jurors and the grounds of challenge in criminal cases, will disclose some conflict in the decisions on this point. Three of such decisions seem to hold that an opinion by a juror concerning the merits of a criminal case, requiring evidence to remove it, does not necessarily disqualify him from sitting in such case. Benton v. State, 30 Ark. 328; Casey v. State, 37 Ark. 67; Sneed v. State, 47 Ark. 180, 1 S.W. 68. Opposed to these decisions, there are two cases which adopt the rule contended for by counsel for appellant,--that an opinion requiring evidence to remove it renders the juror incompetent. Polk v. State, 45 Ark. 165; Vance v. State, 56 Ark. 402, 19 S.W. 1066. A consideration of the facts upon which these two last-named cases were based will show that, although it was said in each of them that an opinion requiring evidence to remove it disqualifies a juror, yet it was unnecessary to have gone to that extent in order to support the conclusion of the court in those cases. The judgment of reversal rendered in each of those cases was right, without regard to such rule.

In Vance v. State, supra, the defendant was convicted of an assault with intent to kill. One of the jurors held to be competent by the circuit court stated on his examination in said court "that he was in an adjoining room to that where the defendant did the shooting, eating dinner, and he heard shots, jumped up, ran out, and saw the defendant running up the street with a smoking pistol in his hand." It can hardly be doubted that this juror (being at the place where the shooting occurred, hearing the shots, and seeing the fleeing defendant and the smoking pistol) acted as men usually do in such cases,--made inquiry as to the cause and origin of the difficulty, discussed the question with those present, and formed his opinion from the facts known by him and learned from others at that time. He stated that he could give the defendant a fair and impartial trial, notwithstanding the opinion he entertained; but when it is apparent that the juror has formed an opinion from his own knowledge of the facts of the case, or that, from his connection with the prosecution or defense, he is not an impartial juror, his statement that he can give the defendant a fair and impartial trial will not remove the objection to his competency, for it is possible that the most prejudiced man might be willing to say, and even believe, that he would be an impartial juror. Had this juror answered that it would take no evidence to remove his opinion, he would have still been incompetent; and, even had he disclaimed any opinion, it is doubtful if he would have been a competent juror. The judgment in the Vance case, therefore, is clearly right, irrespective of the question now under consideration.

The same thing may be said of the decision in Polk v State. Several jurors stated on their examination in that case that they had formed opinions as to the guilt or innocence of the defendant. One had an impression on his mind from having heard a witness for the state testify in a case against another person jointly indicted with defendant for the crime of murder for which defendant was being tried. Another had formed an opinion from the statement of a person "who purported to state the facts." Yet the circuit judge refused to allow the defendant to ask one of these jurors, on his examination, whether it would take evidence to remove the impression. he had on his mind. He refused to allow him to ask another whether he could go into the jury box prepared to give the defendant the presumption of innocence, or to ask another whether, from his knowledge of his own mind, he believed himself to be an unbiased juror. The object of the examination of jurors touching their qualifications, said Judge Smith in that case, is to ascertain whether they are impartial. "The court," he said, "is the trier, and should permit any question to be answered which seems to be propounded in good faith for the purpose of sifting the truth, and searching the consciences of the jurors." The jurors having stated in that case that they had opinions concerning the guilt or innocence of the defendant, it was incumbent on the state to show that such opinions were not of a nature to influence their judgment in the trial of the case. This was not shown, for the circuit court, upon the jurors stating that they could give the defendant a fair and impartial trial, cut off further examination, and refused to permit a full and fair examination of such jurors; and it could not be said whether they were qualified to sit in the case or not, and a reversal was necessary. But the learned judge who delivered the opinion in that case undertook to lay down the rule broadly that persons offered as jurors who state upon their examinations that they have formed opinions of the guilt or innocence of the defendant which would require evidence to remove are incompetent, and should be rejected. The objection to his reasoning on this point is that he seems to assume that an opinion requiring evidence to remove it is necessarily a settled or fixed opinion, and such as to prevent the juror from impartially trying the case. 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. It...