Harris v. State
| Decision Date | 07 May 1928 |
| Docket Number | (No. 431.) |
| Citation | 6 S.W.2d 34 |
| Parties | HARRIS v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Nevada County; J. H. McCollum, Judge.
Barney Harris was convicted of murder in the second degree, and he appeals. Affirmed.
J. O. A. Bush and Dexter Bush, both of Prescott, for appellant.
H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Attys. Gen., for the State.
Appellant and Billy Cornelius were jointly indicted at the July, 1927, term of the circuit court of Nevada county for the crime of murder in the first degree for killing Aud Hooker. Subsequently the charges were severed and upon a second trial of the case appellant was convicted of murder in the second degree and adjudged to serve a term of five years in the state penitentiary as a punishment therefor, from which is this appeal.
The first assignment of error urged by appellant for a reversal of the judgment was a refusal of the trial court to sustain his plea of former jeopardy. On the first trial of the case at the July, 1927, term of court, after the jury had been impaneled, sworn to try the cause, the opening statement of counsel made, and the testimony of one witness heard, the court was informed that J. A. White, a member of the jury, was on appellant's bond, whereupon the court discharged him and ordered the selection of another juror. After the juror had been excused, appellant made a motion to be discharged on the ground that he was placed in jeopardy when the jury was sworn, which motion was overruled by the court, over appellant's objection and exception. Another juror was selected, but the jury failed to agree upon a verdict. The case was continued to the January, 1928, term of court. When the case was called for trial appellant filed a written plea of former jeopardy, to which he attached the affidavit of J. A. White, the juror who had been discharged by the court on the first trial, to the effect that he had signed appellant's bail bond at the request of one of his friends and not because he had any interest in the case. He further deposed that he had no bias or prejudice for or against the defendant. The court again overruled appellant's plea over his objection and exception. Appellant argues that the court had no right to discharge the juror without an affirmative showing of bias by the state. The reason for appellant's position is that, being on the bond of an accused, does not disclose bias, either actual or implied, on the part of a juror, as defined by sections 3159 and 3160 of Crawford & Moses' Digest. It is true that section 3160 of Crawford & Moses' Digest prescribed the conditions under which challenges may be made for implied bias, and being on the bail bond of an accused is not one of the conditions. We think, however, the condition is covered by section 3159 of Crawford & Moses' Digest, which is as follows:
"Actual bias is the existence of such a state of mind on the part of the juror in regard to the case, or to either party, as satisfies the court, in the exercise of a sound discretion, that he cannot try the case impartially and without prejudice to the substantial rights of the party challenging."
Under the section quoted, actual bias is the state of mind of a juror. By the act of signing the bond in the instant case, the jury aligned himself with the cause of appellant, and necessarily became interested in the result of the prosecution. He was responsible for the presence of appellant, and had appellant not appeared would have been responsible on the bond, and was responsible thereon until taken into custody after conviction. Indeed it would be a travesty on justice to allow interested jurors to try cases. In the case of Martin v. State, 163 Ark. 103, 259 S. W. 6, 33 A. L. R. 133, this court quoted with approval from the Supreme Court of Maine in the case of State v. Slorah, 118 Me. 203, 106 A. 768, 4 A. L. R. 1256, the following language:
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