Martin v. State

• Decision Date: 23 January 1911
• Docket Number: 14740
• Citation: 54 So. 148,98 Miss. 676
• Court: Mississippi Supreme Court
• Parties: ARTHUR MARTIN v. STATE

54 So. 148

98 Miss. 676

ARTHUR MARTIN v. STATE

No. 14740

Supreme Court of Mississippi

January 23, 1911

APPEAL from the circuit court of Quitman county, HON. SAM C. COOK Judge.

Arthur Martin was convicted of murder and appeals. The facts are sufficiently stated in the opinion of the court.

Reversed and remanded.

Brewer & Watkins, for appellant.

The right to a trial by an impartial jury when being prosecuted for crime is secured by section twenty-six of the Constitution. No more sacred duty can devolve on any court than the duty of seeing to it that this provision of the Constitution receives a strict enforcement. In the light of this record we are overwhelmed by the fact that Martin did not get that trial by an impartial jury that was secured to him by the Constitution. We believe this statement incontrovertible, because in either aspect of the case the defendant was tried by a juror who, to say the least of it was prejudiced against him. We say in either "aspect," because this ground of the motion appears in a two-fold light. In the first place, if the court be of the opinion that the matters and facts sworn to by the witnesses Johnson and Buckner constitute an expression of opinion prejudicing the case, and the juror failed to disclose such matters on his voir dire examination, then a fair and impartial jury did not try Arthur Martin. In the second place, if the court be of the opinion that the matters and facts testified to by the witnesses Johnson and Buckner did not constitute an expression of opinion prejudicing the case, but merely constituted a hypothetical or qualified opinion, then we say that the failure of the juror to give some notice or knowledge of his mental attitude to the appellant, highly prejudiced appellant's case, because he had not exhausted his peremptory challenge (the record shows appellant to have exhausted nine of his peremptory challenges), and if such matters had been given to his knowledge he could and would have thereby become entitled to challenge peremptorily the juror, J. M. Madison. Every defendant is entitled as a matter of right and of law to know the mental attitude of jurors serving in his case, and to have each and every one of them absolutely fair and impartial as between him and state on whatever issue joined.

The first proposition, as set out above and sustained by the record in this case, as settled beyond all doubt in this state by the decisions of this court cited below: Nelms v. State, 13 S. & M. (Miss.) 500; Sam v. State, 13 S. & M. (Miss.) 189; Cotton v. State, 31 Miss 504; Jeffries v. State, 74 Miss. 675; Sheppric v. State, 79 Miss. 740; Dennis v. State, 91 Miss. 221; Jones v. State, 52 So. 791.

The second proposition: "That Johnson's and Buckner's testimony as to what was said to them by the juror Madison merely constituted a hypothetical or qualified opinion" we now wish to argue.

On this branch of the case we cite the court to the following Mississippi decisions: Cannon v. State, 57 Miss. 147; Schrader v. State, 84 Miss. 593; Cody v. State, Third Howard 27.

P. H. Lowery, for appellant.

On the motion for a new trial it was shown by the testimony of the witnesses, Johnson and Buckner, that one of the jurors who tried this case, viz.: J. M. Madison, had formed and expressed an opinion adverse to this defendant, and had even gone so far as to discuss what he would do if put upon the jury. This testimony is absolutely uncontradicted. It is also shown by the testimony of Mr. Peden that this juror was not only adverse to the defendant, but that he denounced the instructions of the court and expressly declined to consider them, or to consider the defendant's evidence. It is also shown by the testimony of this witness and by the testimony of Mr. Covington, and by the registration books, that this juror was about seventy-eight years old, and cannot read and write. While the age of the juror does not render him incompetent and his inability to read and write could not ordinarily be taken advantage of after a verdict, yet they shed more light upon the purpose of this juror. He was not only a volunteer upon the jury by failing to claim his exemption from age, but in order to get upon the jury, had falsely stated that he could read and write and also that he had no opinion as to the guilt or innocence of the defendant. That he had not even heard any expression of opinion by any one else and knew absolutely nothing about it.

Even if the trial had otherwise been absolutely free from error, and even if there had been no evidence which would justify the acquittal of this defendant, this error alone would entitle him to a new trial. How much more is this the case where a man is forced to trial against adverse sentiment and where the evidence largely preponderates in favor of his innocence and where the record abounds in errors against him in the progress of the trial. Jones v. State, 52 So. 791; Sheppric v. State, 79 Miss. 740; Jeffries v. State, 74 Miss. 675; Sam v. State, 31 Miss. 480; Cotton v. State, 31 Miss. 504; Nelms v. State, 13 S. & M. 500; Cody v. State, 3d Howard 27.

It may be in this case that if the juror, Madison, had disclosed that which was shown by the testimony on the motion for a new trial, the court, might after hearing the facts have decided him competent but that is not the question. The impression or opinion which he had formed makes him prima facie incompetent and only the judgment of the court, after hearing all of the facts, makes him competent, and even then the defendant with all the lights before him would, in all probability, have challenged him.

Jas. R. McDowell, assistant attorney-general, for appellee.

Coming now to the only serious point in the whole case, I will discuss the juror, Madison. He was evidently an old man, but his faculties seem to have been active. Counsel attempts to show that he could neither read nor write, but this, of course, comes too late after verdict. If he was too old to sit on the jury then counsel ought to have objected to him for that reason, or should have shown that his faculties were impaired. These objections are frivolous; but there is a more serious phase. This witness' voir dire examination appears on pages 54, 55 and 63 of the record. He is shown there to be qualified to try the case. On a motion for a new trial testimony is introduced to show that he had expressed an opinion as to the defendant's guilt. I think, however, the record will disclose the fact that this witness stated a hypothetical case, and did not announce it as his fixed opinion that this defendant was guilty. He simply says that if what he heard is true that he ought to be hung.

Of course, I realize the force of the many cases which have held, that the formation or expression of an opinion antagonistic to the defendant on trial on such a charge, and will not take issue with counsel for defendant on this point. The Jeffries and Sheppric cases, and similar cases, have settled the law on that point.

In Jones v. State, 52 So. 791, where the court held that the jury was prejudiced, Smith, J., in a dissenting opinion says, that where the only defense was the insanity of the defendant, and if this defense failed and the jury could have rendered no verdict except that of guilt, reversals because of the expression of an opinion by a juror, should not be granted. It strikes me that that case and the instant case are somewhat parallel in this. Whereas, the only defense was an alibi, and if that should fail, then defendant is guilty of a cold-blooded assassination, and where this juror, Madison, has said that if what he had heard was true the defendant ought to be hung, this expression by Madison could have in no wise prejudiced defendant's case.

I realize that the defendant, however guilty, is entitled to a fair and impartial trial before twelve men, who must be ready and willing to give him a fair trial, and must not have prejudged his guilt or innocence, but I submit that on the trial of this case, and on the motion for a new trial, at which time the state had no opportunity to go into the matter, there was not sufficient proof to show that Madison had prejudged the defendant's guilt. I confess that the juror, Madison, should have been more frank with the court, and have given the court the benefit of any conversation he had ever had, no matter whether a hypothetical case or not, but if this was a hypothetical case only, then it seems to me that no harm has come to the defendant. Your honors will have to determine from the testimony on the motion for a new trial, meager though it is, whether the juror, Madison, had really prejudged the case or was merely stating a hypothetical case; and whether or not the juror corruptly concealed his opinion from the court; and whether he went into the box intentionally withholding from the court and counsel his opinion, in order that he might sit on the jury and have a chance to convict the defendant. On this last point, that is, upon the qualification of juror Madison, I will have nothing further to say, but will respectfully submit the matter to the court to determine whether or not, as a matter of fact, Madison had such an opinion as to the guilt or innocence of the defendant as would disqualify him; and whether or not he had in fact prejudged the case against the defendant; and whether or not he willfully and corruptly withheld his opinion from the court for the purpose of having a chance to convict the appellant.

OPINION

WHITFIELD, C.

Whoever killed the two women was guilty of a deliberate assassination. The defense was an alibi. It may just be said generally, that if the testimony for the state was believed by the jury, as it evidently was, then the defendant is guilty; but that, if the...