Lewis v. State

• Citation: 40 Tenn. 127
• Parties: JOHN AND JESSE LEWIS v. THE STATE.
• Decision Date: 30 September 1859
• Court: Supreme Court of Tennessee

40 Tenn. 127

JOHN AND JESSE LEWIS

v.THE STATE.

Supreme Court of Tennessee.

September Term, 1859.

FROM ANDERSON.

The plaintiffs in error were indicted and found guilty of murder in the first degree, before Judge Brown. The jury found that there were mitigating circumstances, and recommended the prisoners to the mercy of the court. His honor, the Circuit Judge, refused to commute the punishment, and the prisoners appealed in error. After the opinion of the court was delivered, the counsel for the prisoners presented a petition for a re-hearing. The principal grounds relied on in the petition will be found at the conclusion of the brief of the counsel. The court refused the application for a re-hearing.

Heiskell & Trigg, for the plaintiffs in error, argued:^a1

1. The juror John C. McKamey, having undergone the usual examination to test his competency, and the court having decided that he was a competent juror, and put him to the prisoners, the right of the prisoners to elect or challenge juror immediately attached, and it was error to withdraw him from them upon the suggestion of the Attorney-General. The degree of the juror's intoxication, if he was so in fact, was not shown to be such as to render him incapable of attending to business, or performing the duties of a juror. It is evident that he could not have been much under the influence of ardent spirits, else the court would have observed it in the original examination.

2. The jurors Alfred Duncan, Alex. L. Galbreath,--Farmer, and Thomas Yarnell showed themselves clearly incompetent, and should have been rejected. The jury have a most important duty to perform, having in their hands the life, or liberty of the prisoner, and it is not only desirable, but a matter of the highest importance, that they should, if possible, stand indifferent between the accused and the State. It is the constitutional right of the accused to be tried by an impartial jury, and the ordinary claims of humanity demand that prejudice--an unfit associate of justice--shall have no part in determining his fate.

Why has the law provided that the accused shall be entitled to challenge peremptorily, a certain number of jurors; and that, for certain existing causes, the jurors shall be rejected without being put to the accused? It is for the purpose of securing to the accused, if possible, what the common law, common sense, common justice, and the Constitution would all seem to demand--an impartial jury. It is not a matter of favor, but of right, that he shall have a panel of unprejudiced and impartial men by whom to be tried. If the jurors, or any of them, have formed or expressed an opinion as to the guilt or innocence of the accused, it is evident they cannot be impartial, and if one or more who, on that account, would be incompetent, should be put to the accused, and he be compelled to challenge, the means provided by law to secure that object would become ineffectual. His having formed or expressed an opinion is what disqualifies the juror, for the law in such case presumes that there is partiality and prejudice operating on his mind. It is not contended that an opinion formed upon any data, no matter what, is sufficient to disqualify the juror, but, on the other hand, if the data upon which the opinion is formed be reasonable, and relied on as true, then the disqualification attaches, for in such case the prejudice exists; the juror, as it is expressed in some of the decisions of this court, has “made up his mind,” and “will listen with more favor to that testimony which confirms, than to that which will change his opinion. It is not to be expected that he will weigh the testimony as well as one whose opinion is not made up in the case.” It is the character of the opinion formed in the mind, and not the source from which it is derived, that furnishes the test of the juror's competency. And so we understand the rule to be settled in the case of Moses v. The State, 10 Humph. 456. In delivering the opinion of the court in that case, his honor, Judge McKinney, remarks, “that in testing the fitness or competency of a juror, the character of the impression made upon his mind, and the influence upon his conduct likely to be produced by it, are of much greater consequence than the source whence such impression may have been derived.” In that case, the juror had formed an opinion from rumor, and did not show whether his information was derived from any of the witnesses or persons who knew the facts, but said he could do justice to the prisoner, if the proof turned out differently from rumor. The court decided that the juror was not indifferent, and was, therefore, liable to challenge for cause, and reversed the judgment of the court below. The case in 2 Swan, 585, does not conflict with this view.

A comparison of that case (in 10 Humph.) with the present, will disclose a great preponderance against the fitness or competency of at least two of the jurors mentioned above.

Alfred Duncan states explicitly that he had formed an opinion from rumor, and that he had heard persons tell over the circumstances of the case, and he believed them, and formed his opinion. It is true, he states, that those persons did not profess to know the facts except from information, and he (the juror) did not know whether they professed to state them from mere rumor, or by hearing them stated by some one who professed to know them. But the ignorance of the juror as to the source whence his informants derived their information cannot, surely, alter or change the character of the impression made upon his mind, if he believed in the truth of the information communicated to him, as he states he did.

This presents a very strong case, and of itself would seem sufficient to reverse this judgment, when tested by the ruling of this court in the case referred to in 10 Humph. But the ruling of the court below upon the competency of the juror, Thomas Yarnell, is, if such a thing be possible, more in conflict with the rule established in such cases, than that before named, in reference to Duncan. Yarnell had made up an opinion in the case, from hearing men talk about it, who told him the facts--they talked like they believed what they said, and he believed what they said, and made up his opinion. Whether the men who told him the facts were witnesses, or persons who knew them, does not appear--nor is it material. It is enough that the facts were detailed to him, and he relied upon them as being true, and so formed his opinion. This statement of the juror discloses no “mere hypothetical opinion, or vague impression,” which may be easily removed by evidence, but it evinces a “positive and deliberate opinion, formed upon a rational ground of belief.” The rules established by this court for testing the competency of jurors, embrace within their principles the cases above named, if not also that of the other jurors, Galbreath and Farmer. McGowan v. The State, 9 Yerg. 192;Moses v. The State, 10 Humph. 456;Moses v. The State, 11 Humph. 232.

If, however, the exception to the jurors above named should not fall within the principles of the rules, or either of them, as established in the cases cited, their examination, at least, shows that it was doubtful whether they had formed such an opinion as would render them unfit to be jurors, and on that ground they should have been rejected. Henry v. The State, 4 Humph. 270.

3. The court erred in discharging the juror Landrum, after the panel had been made up, without an examination of him, or calling upon him for an explanation of his conduct. The parties making the affidavit upon which the court acted, state that by nods, shaking of the head, etc., the juror made unmistakable signals to Warrick to refuse certain jurors tendered, and to accept others who were also tendered.

The purpose for which the nods, etc., were made by the juror might have been mistaken by the affiants, and upon an examination of the juror, and hearing his explanation of it, the court might have become satisfied that they proceeded from no corrupt motive.

But granting that the court did right in discharging the juror, then we insist that the prisoners were entitled to their full number of challenges in the selection of another, and that the court erred in refusing to allow that number to them.

In the case of Garner v. The State, 5 Yerg. 160, one of the jurors became sick during the trial, and had to be withdrawn, and another was called in his place. The defendant insisted on his right of challenge, and did challenge the juror; but having exhausted his challenges in the first selection, the court overruled his challenge, and directed the juror to be sworn. This court decided that the court below erred, and that the defendant was entitled to the whole number of challenges applicable to the offense.

In that case, the jury had been sworn; and in that respect it differs from the present case. But it is submitted that the reasoning in Garner's case will apply with equal force to the one under consideration.

In both cases the jury was made up, and that is the fact of importance in testing the application of the rule contended for on behalf of the plaintiffs in error in this case. Out of the number of jurors submitted to the prisoners, they had elected twelve to compose the jury by whom they were to be tried; and, so far as concerned the right of challenge in the prisoners, what conceivable difference could it make with them whether the panel thus elected was broken before or after they were sworn and charged with the cause? After the panel was made up, by the election of the prisoners from the list of jurors presented to them, the jury was, in law, impanelled, and was as much the jury, for the trial of the cause, before being sworn, as it was afterwards. And this being so, all the rights secured to the prisoners in the selection of that jury were, functus officio; and, ipso facto, the remaining jurors summoned...