Peterson v. State, 6 Div. 130.

• Court: Supreme Court of Alabama
• Writing for the Court: GARDNER, Justice.
• Citation: 227 Ala. 361,150 So. 156
• Decision Date: 29 June 1933
• Docket Number: 6 Div. 130.
• Parties: PETERSON v. STATE.

150 So. 156

227 Ala. 361

PETERSON
v.
STATE.

6 Div. 130.

Supreme Court of Alabama

June 29, 1933

Rehearing Denied Oct. 12, 1933.

Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.

Willie Peterson was convicted of murder in the first degree, and he appeals.

Affirmed. [150 So. 158]

John W. Altman and Walter S. Smith, both of Birmingham, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

GARDNER, Justice.

The appeal is from a judgment of conviction of murder in the first degree, with the infliction of the death penalty.

The questions argued by counsel for appellant will be treated in the order of their presentation in briefs. The first relates to defendant's effort, after the selection of the jury and the trial proceeded to the examination of some of the witnesses for the state, to have the court declare a mistrial on account of the alleged bias of juror Dugger, and his motion, after verdict, for a new trial based upon the same ground.

Counsel cite the recent case of Clark v. United States, 53 S.Ct. 465, 77 L.Ed. ---, as applicable here to the conduct of juror Dugger. But the cases are not analogous. In the Clark Case the juror was held in contempt of court for having given answers on her voir dire examination, which were willfully and corruptly false, and by such deception, practiced on the court for the purpose of rendering service to the defendant on trial, had procured a place as a member of the jury. No such charge against Dugger is sustained by the record. It appears that, following the usual questions by the court to the members of the venire, as prescribed by section 8610, Code 1923, a few of those summoned disqualified themselves and were excused as having a fixed opinion which would bias their verdict. Subdivision 7, section 8610, supra. The solicitor then asked the remaining members the following question: "Have any of you, gentlemen, expressed an opinion as to the guilt or innocence of this defendant?" Immediately three jurors stood, one of whom was juror Dugger, and said they had so expressed an opinion, based on what they had heard or what they had read in the newspapers. In answer to further inquiry, the three jurors stated that such opinion was subject to change, and they would render their verdict, whether for the state or the defendant, upon the sworn testimony in the case and upon that alone.

We may here interpolate that the crime of which defendant, a negro, was charged, was most revolting in its details, and a previous trial had resulted in a mistrial. The question at issue was solely one of identification, and there had, very naturally, resulted much discussion.

Upon completion of the examination, above noted, the state struck one of the three jurors so standing and defendant another Dugger was permitted to remain and become a member of the jury. Neither the state nor defendant asked of either of these three jurors what opinion they had expressed or to whom. Neither of defendant's counsel propounded any question whatever to juror Dugger. It may be properly added here that counsel appearing on this appeal did not participate in the trial in the court below. During the progress of the trial and after the examination of three witnesses for the state, defendant moved for a mistrial of the cause and offered to show that the juror Dugger had previously expressed the opinion the defendant was guilty and should be electrocuted and a desire to get on the jury for such purpose. But Dugger had practiced no deception on the court or counsel. When asked the question, he had promptly stated, in open court, he had previously expressed an opinion. He denied emphatically, however, the statement contained in two affidavits on file (the two Hennings) that he had expressed any desire to get on the jury. The court denied the motion for a mistrial and expressed the view the objection to the juror came too late.

Our decisions recognize the constitutional right of a trial by an impartial jury, and that the "due and proper administration of the law-on the one hand protecting the public against the commission of crime, and on the other shielding innocence from passion and prejudice-materially depends on the fitness, competency, and impartiality of jurors," and many safeguards to this end have been made by statutes and decided cases. As said, however, in Henry v. State, 77 Ala. 75, "While it is of first importance that the right of both the State and of the defendant to a trial by an honest, intelligent and impartial jury, should be jealously maintained, the necessity of guarding against other evils, readily suggested, requires a time fixed, when the right to challenge shall cease."

Here the juror Dugger in open court acknowledged that from rumor and newspaper accounts of the crime he had expressed an opinion about the case, but stated that as a juror he would be governed by the evidence alone. He practiced no deception on the court or counsel, as in the Clark Case, supra, but made open admission of a previously expressed opinion. He was not called upon to state what opinion he had so expressed. Defendant's counsel, who had represented defendant on the former trial wherein a mistrial was declared, sat silently by and interposed no inquiry, seeming [150 So. 159] thereby to speculate, as it were, upon the chance as to whether such opinion had been favorable or unfavorable to their client's cause, and without asking him a question accepted Dugger as a member of the jury and permitted the trial to progress through the examination of several witnesses for the state before interposing any objection.

Usually the examination by the court under section 8610, Code 1923, suffices as to the qualification of the juror, and further examination on the part of the court is discretionary. But section 8662, Code 1923, confers upon the parties the right to further examine the jurors within proper bounds to ascertain "any matter that might tend to affect their verdict," which includes matters pertinent to enable the party to advisedly make peremptory challenge. Gholston v. State, 221 Ala. 556, 130 So. 69.

Defendant's counsel sought no exercise of this right of examination, and there is nothing to indicate the juror Dugger would not have fully answered as to what opinion he had expressed and to whom. Out of a regard for the due administration of the law and a "necessity of guarding against other evils," our authorities are to the effect that, under the circumstances above noted, the stated objection came too late, and any matter of disqualification waived. Batson v. State, 216 Ala. 275, 113 So. 300; Henry v. State, 77 Ala. 75; Mooring v. State, 129 Ala. 66, 29 So. 664. And such holding is in accord with the authorities generally. 35 Corpus Juris, 364, § 404 1/2.

We have examined the cases noted by appellant (among them, Spooney v. State, 217 Ala. 219, 115 So. 308; Aldridge v. U. S., 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054, 73 A. L. R. 1203; State v. Sanders, 103 S.C. 216, 88 S.E. 10; State v. McAfee, 64 N.C. 339; Priestly v. State, 19 Ariz. 371, 171 P. 137, 3 A. L. R. 1205; Jacobs v. State, 1 Ga.App. 519, 57 S.E. 1063), and find they involve no such situation as here presented, and do not run counter to the rule recognized by the authorities herein cited.

Moreover, it cannot be said the juror Dugger was in fact disqualified. Our decisions are uniform to the effect that, notwithstanding a previously expressed opinion, formed from rumor and newspaper accounts, if it appears that the juror states unqualifiedly and distinctly that after being sworn as a juror he could lay aside such previously expressed impression and find a verdict on the evidence alone, he is not disqualified.

What is said in Long v. State, 86 Ala. 36, 5 So. 443, 447, finds application here:

"While some of the expressions in the opinions may not be sufficiently limited or qualified for use as a general definition, the following may be deduced from the cases when compared with each other, as expressing the meaning of a fixed opinion which would bias the verdict. The mere formation of an opinion, founded on rumor or hearsay, which is subject to change on hearing the evidence, and leaves the mind of the juror free to impartially consider the whole evidence, without giving undue credence to that which tends to prove the facts as heard, and to apply to the evidence the law as pronounced by the court, is not sufficient to disqualify. But an opinion, whether founded on rumor or conversations with witnesses, or on observation, which is a conviction, a prejudgment disqualifying the juror to impartially consider the whole evidence,-that which tends to prove the facts as heard, as well as that which contradicts or explains,-and to apply free from bias the law as given in charge by the court, is a fixed opinion which will bias the verdict. The mind of the juror should be in such a state of freedom, that he is capable of giving to the accused the weight of the presumption of innocence, and the benefit of a reasonable doubt. The statute affirms, in concise, intelligible, and comprehensive language, the common-law rule, as declared by Chief Justice Marshall in Burr's trial. 'That light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but 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.'

"The sufficiency of the cause of challenge is determined by the trial court, and the inquiries are addressed to the conscience of the juror under oath. He is examined touching his

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