Leigh v. Territory of Arizona

• Decision Date: 30 March 1906
• Docket Number: Criminal 227
• Citation: Leigh v. Territory of Arizona, 85 P. 948, 10 Ariz. 129 (Ariz. 1906)
• Parties: C. C. LEIGH, Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

85 P. 948

10 Ariz. 129

C. C. LEIGH, Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 227

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Mohave.R. E. Sloan, Judge.Affirmed.

The facts so far as pertinent are stated in the opinion.

LeRoy Anderson, for Appellant.

The jurors Haskins, Irwin, Miller, and White were incompetent and unqualified, and the court erred in denying defendant's challenge to them and should not have caused defendant to exercise upon them his peremptory challenges.Rev. Stats Ariz. 1901, title 9, chap. 1, sec. 915;Reynolds v United States,98 U.S. 145, 25 L.Ed. 244;Territory v. Davis,2 Ariz. 63, 10 P. 359.It is almost a universal rule that a juror whose opinion is such as to require evidence to remove it, is disqualified.People v Gehr,8 Cal. 361;People v. Johnston,46 Cal 78;People v. Wells,100 Cal. 227, 34 P. 718;People v. Fultz,109 Cal. 258, 41 P. 1040;Vance v. State,56 Ark. 402, 19 S.W. 1066;State v. Wilcox,11 Wash. 215, 39 P. 368;State v. Snodgrass,52 Kan. 174, 34 P. 750;Smith v. Eames,36 Am. Dec. 532, note.It is the accepted rule in this territory, as well as elsewhere, that when a juror admits having formed and expressed an opinion, and expressed any degree of doubt as to whether such previously formed opinion would affect his judgment in arriving at a just and proper verdict in the case, then it is error to admit him to the panel.Rev. Stats. Ariz. 1901, sec. 910;subds. 13, 14;State v. Johnson,49 W.Va. 684, 39 S.E. 665;People v. Williams,6 Cal. 206;People v. Cottle,6 Cal. 227;People v. Brotherton,43 Cal. 530;People v. Miller, 125 Cal. 44, 57 P. 770.

The court erred in sustaining the challenge of the territory to jurors Thompson and Musser, on the ground of their conscientious scruples as to the death penalty.The question, Has the prospective juror such conscientious scruples as would preclude his finding the defendant guilty? is the criterion.See, Rev. Stats. Ariz. 1901, chap. 9, sec. 910, subd. 14;People v. Stewart,7 Cal. 140;Stratton v. People,5 Colo. 279.The courts of the states having similar provisions in their statutes have recognized this principle.State v. Dooley,89 Iowa 584, 57 N.W. 414;State v. Lee,91 Iowa 499, 60 N.W. 119;State v. Garrington, 11 S. Dak. 178, 76 N.W. 326.

E. S. Clark, Attorney-General, for the Territory.

OPINION

KENT, C. J.

-- The only questions raised by the appellant in his assignment of errors, and upon the incomplete record which we have before us, are as to the correctness of the rulings of the trial court upon the challenges for cause to certain jurors.The first assignment of error is as follows: "The court erred in not sustaining the challenge for cause of defendant to the jurors: G. S. Haskins, Frank Irwin, George W. Miller, and Peter F. White, and caused defendant to exercise a peremptory challenge upon each of the above-named jurors, to his harm, for the reason that said jurors had expressed an unqualified opinion concerning the guilt or innocence of defendant, and that it would take evidence to remove said opinion."By section 910 of our Penal Code it is provided that either party may challenge any individual juror for any of the various causes set forth in fifteen subdivisions of said section.The thirteenth subdivision of said section provides as a cause for such challenge: "For the existence of a state of mind on the part of the juror in reference to the case, or to the defendant, or to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party."By section 915 of the Penal Code it is provided: "When a challenge is made for the cause mentioned in subdivision thirteen (13) of section 910, no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or facts to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety; provided: It be a qualified opinion, and it appears to the court that such juror will act impartially and fairly upon the matter to be submitted to him.The court shall instruct the jurors as to the distinction between a qualified and an unqualified opinion, and if the person has formed or expressed an unqualified opinion, he shall be excluded."

Where therefore a juror has formed or expressed an unqualified opinion -- that is, a fixed, settled, and abiding conviction as to the guilt or innocence of the defendant -- it is a cause for his disqualification as a juror; and the court, upon objection properly taken, must exclude him.The source of such opinion, or the grounds upon which it is based, is unimportant; the fact that it is an unqualified opinion disqualifies the juror.Where a juror has an opinion less strong than a fixed or settled conviction, or, in other words, a qualified opinion, it becomes important for the court to ascertain not only the strength of such opinion, but upon what such opinion is founded.If it be founded upon public rumor, statements in public journals, or common notoriety, the juror is competent to serve, if it shall appear that he will act fairly and impartially upon the matter to be submitted to him.If it be founded upon actual knowledge of the facts, or upon statements made to him by a party or by witnesses in the case, or upon other definite knowledge or information, it is nevertheless for the court to determine whether or not such knowledge or information has in fact brought about in the juror a state of mind which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, even though it appears from the testimony of the juror that he considers that he can so act.That the juror will carry such opinion into the jury-box, or that it will take evidence to remove the opinion so formed, are not, in themselves, grounds of disqualification.The question is, can the juror act fairly and impartially, irrespective of the opinion that he holds, or is it such an opinion, by reason of its strength or the grounds upon which it is based, as has produced in the juror a state of mind prejudicial to the substantial rights of the party.This is a question which must be left largely to the wise discretion of the trial court; and the determination of the trial court in that regard will not be disturbed on appeal, unless it appears to be clearly erroneous.As we said in Brady v. Territory,7 Ariz. 12, 60 P. 698: "It has been frequently held that a juror, stating he has formed an opinion as to the merits of a case, which it would take evidence to remove, is nevertheless competent if it appears that he can decide the case impartially, without reference to what he has heard or the opinion which he has formed.State v. Morse,35 Or. 462, 57 P. 631;People v. King,27 Cal. 507, 87 Am. Dec. 95;Ortwein v. Commonwealth,76 Pa. St. 414, 18 Am. Rep. 420;State v. Millain,3 Nev. 409;State v. Lawrence,38 Iowa 51.The challenge raised an issue of fact upon which the court had to determine whether the nature and strength of the opinion formed was such as would prevent the juror from acting with entire impartiality.The finding of the trial court upon that issue should not be set aside by the appellate court unless the error is manifest.'No less stringent rules,' says Mr. Chief Justice Waite, 'should be applied by the reviewing court in such case than those which govern in consideration of motions for new trial because the verdict is against the evidence.It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not, in law, be deemed impartial.The case must be one in which it is manifest the law left nothing to the conscience or discretion of the court.'Reynolds v. United States,98 U.S. 145, 25 L.Ed. 244.The trial judge heard the statements of the juror, had an opportunity to observe his manner, temperament, intelligence, and personal peculiarities, as exhibited on his examination -- important factors in determining his qualification -- and ruled in favor of his competency.There is nothing in the record which would warrant us in disturbing that finding."

The assignment which we are considering alleges error in the refusal of the court to sustain the challenge for cause, in that the jurors had expressed an unqualified opinion, and is not based upon the existence of a qualified opinion such as would prevent the jurors from acting impartially.If there was any such unqualified opinion in the mind of any of the jurors, it was the duty of the court to sustain the challenge.An examination of the record before us discloses that the jurors, upon their voir dire, stated in substance as follows: Juror Haskins stated, on his direct examination that from what he had heard he had not formed or expressed an opinion of the guilt or innocence of the defendant; that he had no fixed opinion, because he knew nothing of the case, and no bias or prejudice...