Hill v. State

• Decision Date: 27 November 1916
• Docket Number: 18715
• Citation: 72 So. 1003,112 Miss. 260
• Court: Mississippi Supreme Court
• Parties: HILL v. STATE

72 So. 1003

112 Miss. 260

HILL v. STATE

No. 18715

Supreme Court of Mississippi

November 27, 1916

APPEAL from the circuit court of Bolivar county, HON. WM. A. ALCORN Jr., Judge.

Joe Hill was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Duncan H. Chamberlain, for appellant.

The right to a fair and unprejudiced jury is at the very foundation of the right of trial by jury. If there are any doubts as to the qualification of a venireman, they should be solved against the one challenged. A party submitting his case to the arbitrament of a jury, is entitled to a jury every member of which is a qualified juror--above all doubt or question. Theobald v. Transit Co., 191 Mo. 395 428, 90 S.W. 354, 362, quoting approvingly the rule announced by Mr. Chief Justice MARSHALL of the supreme court of the United States in Burr's Case, that light impressions which may be fairly supposed to yield to the testimony offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror, but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him, and referring to many cases holding that an unbiased jury is of the right of all litigants, our supreme court has said: "The streams of justice should be kept pure and free from prejudice. In the administration of justice the courts and all judges, as well as the jurors, should, as far as human precaution can avail be kept free from bias or prejudice. . . . A man may have an impression one way or the other, even an opinion, that can be reached and dealt with and possibly removed so that he will be a fair, competent juror. Not so with prejudice. It is too strong in its hold to be easily thrown off. Its baneful presence, working on us secretly and insidiously, may, unconsciously to our own selves, mold our minds." Carroll v. United Rys. Co. of St. Louis, 137 S.W. 303, excerpts taken from pages 307-308.

In Pinder v. State, 8 So. 837, the supreme court of Florida concludes its opinion in the following words: "Upon the ground that the court below erred in not permitting the examination of the jurors upon the voir dire on the line herein pointed out, we think the judgment and sentence of the court below should be reversed and a new trial granted, and it is so ordered." Citing State v. Madoil, 12 Fla. 151; Pierce v. State, 13 N.H. 536; People v. Reyes, 5 Cal. 347; People v. Car Soy, 57 Cal. 102; People v. Christie, 2 Park. Crim. R. 579; Jones v. State, 2 Blackf. 475; Lester v. State, 2 Tex.App. 432; Milan v. State, 24 Ark. 346.

To show to what lengths some of our southern courts have gone in their zeal to safeguard negroes against the danger of prejudiced jurors, we need only cite the case of Frederick v. State, wherein the court of criminal appeals of Texas (pronounced by the supreme court of Oklahoma to be the best criminal tribunal in the world), delivered itself as follows: "The bill of exceptions with reference to the questions propounded to the jurors was as follows: 'On the trial of the case when several members of the special venire were being examined on their voir dire, counsel for defendant asked several venireman whether or not, under the same facts and circumstances, he could and would render the same verdict in a case where a negro had killed a white man as in a case where a white man had killed a negro, the evidence being the same; and, when said venireman answered in the affirmative, defendant's counsel asked the question as follows: Under the same facts and circumstances, could and would you render the same verdict in a case where a negro killed a white man for insulting his (the negro's) wife as in a case where a white man killed a negro for insulting his (the white man's) wife? Which was objected to by the counsel for the state, and said objection was by the court sustained, to which action the appellant excepted. If the court had refused to permit the first question, appellant's contention would come directly under the rule laid down in Lester v. State, 2 Tex.App. 432. However, an answer to the question whether or not they would, under the same facts and circumstances render the same verdict in the case where a negro had killed a white man as where a white man had killed a negro was permitted by the court. But, when appellant desired to further probe the consciences of the jurors by asking them a question presenting the matter of prejudice upon the very issue involved in the case, the court refused to permit the question to be answered. The right to ask a question of this character at all is based upon the idea of a certain race prejudice which, from common experience, is recognized to exist to a greater or less extent, on the part of southern people of the Anglo-Saxon race against the negro; and it follows, if an interrogatory of this character is permissible, the question should go to the full extent, and not merely half way. . . . If the answer had not shown prejudice on the part of said jurors, or any of them, still it may have furnished appellant some basis upon which he might have exercised his right more intelligently to avail himself of his peremptory challenges."

Frederick v. State, 45 S.W. 489-- excerpts from pages 590, 591, in this connection, see note on "Hypothetical Question in Examining Juror on Voir Dire," and authorities collated thereunder at page 680, vol. 1913D, Annotated Cases. Also 15 Ann. Cas. 584; 88 Miss. 800; Basye v. State, 63 N.W. 811.

The doctrine is sustained by Railroad Co. v. Buttolf, 66 Ill. 347; Watson v. Whitney, 23 Cal. 375; State v. Godfrey, Brayt. 170; People v. Car Soy, 57 Cal. 102; State v. Bresland (Minn.), 61 N.W. 450.

Ross A. Collins, Attorney-General, for the state.

The appellant, in his first three assignments of error, released a broadside of criticism and authorities against the action of the court in refusing to permit a certain line of interrogatories to the jury on their voire dire examination. Appellant's counsel sought to ask the prospective jurors certain questions purporting to ascertain if they had any prejudice against the negro as a negro. It is to be noted that the record shows that the appellant in this case is a negro as was, also, the man killed by him. Each and every witness, save one, who testified only on the matter of venue were all of the negro race. The trial judge had, in the exercise of the duty and authority conferred on him interrogated the jury under oath as to whether or not they could form a fair and impartial verdict in the case, and as to whether or not they had any bias, prejudice, or ill-will towards the defendant that would prevent them from doing so. This court has heretofore approved a refusal of a lower court to give an instruction whereby the jury were told that they should try a negro by...