State v. Harris.

• Decision Date: 25 April 1911
• Citation: 69 W.Va. 244
• Parties: State v. Harris.
• Court: West Virginia Supreme Court

69 W.Va. 244

State

v.Harris.

Supreme Court of Appeals of West Virginia.

Submitted January 31, 1911.

Decided April 25, 1911.

Criminal Law New TrialDisqualification of Juror.

The general rule, inhibiting allowance of a new trial for matter constituting a principal cause of challenge to a juror, existing before the juror was elected and sworn, unknown to the complaining party until after verdict, not disclosed on a thorough voir dire examination, and undiscoverable by the exercise of ordinary diligence, unless it appears from the whole case that the complainant suffered injustice by reason of the disqualification; applies in criminal cases and to disqualification by reason of relationship to the prosecuting witness, (pp. 244-250).

(poffenbarger, judge, dissenting).

Error to Circuit Court. Marshall County. Melvin Harris was convicted of unlawful shooting, and brings error.

Affirmed.

D. B. Evans and James T. Miller, for plaintiff in error.

William G. Conleey, Attorney General and J. 0. Henson, Assistant Attorney General, for the State.

Poffenbargee, Judge:

Melvin Harris, convicted of unlawful shooting, complains of the verdict principally on the ground of the disqualification of one of the jurors, by reason of his relationship to the wife of the prosecuting witness. The juror was examined as to his qualification and denied relationship, but it was ascertained, after verdict and before judgment, that it existed. Numerous affidavits were taken in support of the motion for a new trial, tending strongly to prove that he was not ignorant of the disqualifying fact. His affidavit, still protesting his ignorance thereof, was filed in resistance of the motion. Rulings of the court on certain instructions are also complained of.

The general rule applicable to motions for new trials, based upon disqualification of jurors, is stated by Judge Snyder in Flesher v. Hall, 22 W. Va. 44, as follows: "The verdict will not be set aside for objections to jurors on grounds which existed before they were sworn, unless it is made to appear that, by reason of the existence of such grounds, the party objecting has suffered wrong or injustice." This has been applied in cases in which jurors would have been excluded, because of their having made up and expressed opinions as to the guilt or innocence of prisoners, had they admitted the fact on their voir dire examinations. State v. McDonald, 9 W. Va. 456; State v. Baker, 13 W. Va. 158; State v. Greer, 22 W. Va. 800; State v. Howe, 26 W. Va. 110; State v. Harrison, 36 W. Va. 729. It was also applied in one case in which a juror was disqualified by relationship, a fact not known to the prisoner before the trial, denied by the juror on his examination and afterwards discovered. State v. Williams, 14 W. Va. 851. A like application of the general rule has been made by some courts of other states. State v. Congdon, 14 E. I. 458; Traviss v. Commonwoealth, 106 Pa. St, 597.

Relationship is a common law disqualification and the principle upon which it stands is very similar to that under which persons interested in one side or the other of a controversy are excluded. Its natural tendency and effect is to create bias and partiality in favor of the related party, and it is a maxim of the law that triers of questions of fact must be impartial and unbiased. For this reason relatives to parties to trials are not permitted to act as jurors. On the same principle, the constitutions and statutes of some states prohibit them from sitting as judges, to ascertain and apply the law to the facts, a matter as to which errors are correctible by appeal. It is a personal disqualification, based upon the most harmful and insidious element conceivable. "Blood is thicker than water," and it is utterly impossible for any person to determine how far the judgment or action of a person affected by it may be swayed or controlled. It operates upon the mind and heart of the individual secretly and silently. Its operation is not disclosed by any outward manifestation other than the result. It is utterly impossible to look into a man's mind and see its operation. Its effect is not general, like many other disqualifications. It is purely personal, operating between the related parties and to the prejudice of all others. In this respect, it is wholly unlike many other disqualifications, relating to the character and standing of the juror, such as age, lack of citizenship, residence or property qualifications. A man disqualified in any of these particulars, may nevertheless be intellectually and morally as suitable and desirable as any other man not so affected. But one who has an interest in the subject matter of the litigation or is related to one of the parties, is palpably and wholly unfit for service as a juror. His disqualification is particular, not general, and extends into the litigation itself. For these reasons, it seems to me, it ought to be excepted from the general rule, and, in some states, it is sufficient to set aside a verdict, if unknown to a prisoner who has not waived it by lack of diligence. Smith v. State, 59 S. E. 311; State v. Williams, 9 Hons. (Del.) 508; Hudspeth v. Herston, 64 Ind. 133; Pearcy v. Ins. Co., 111 Ind. 59; Coal Co. v. Persons, 39 N. E. 214; Gardner v. Arnett, 50 S. W. 840; Tarpey v. Madsen, 26 Utah 294; Bailey v. McCauley, 13 A. & E. 815; Jewell v. Jewell, 84 Me. 304; 18 L. B. A. 473; Cameron v. Railway Co., 32 Ont, 24. In State v. Williams, 9 Hous. 508, the court said: "By the common law (and we have no statute on the subject) any one related by blood or marriage, as remotely as the ninth degree even, to a party in a trial, is subject to challenge propter affectum, that is, on account of the likelihood or suspicion of bias or prejudice, and no evidence to the contrary will be heard. The fact constitutes disqualification. It is evident, therefore, that an impartial trial, in contemplation of law in civil cases, cannot be had where such kinship exists, nor by the constitution in criminal cases, treating the victim as in the light of a party." A valuable note to Jewell v. Jewell, 18 L. B. A. 473, shows the distinction here insisted upon has been made in many courts. The annotator says: "The want of purely statutory qualifications, such as citizenship, age, property, etc., which do not go to make up the necessary qualities to enable a juror to perform his duty with intelligence and impartiality, have never been treated with the same strictness as objections for bias, criminality, and like causes." He then cites a long list of cases to sustain this obviously reasonable and jusi proposition.

In classing disqualifications on account of relationship and interest with others, this Court has never at any time discussed their peculiarity in respect to nature and character. In State v. Williams, 14 W. Va. 851, the Court followed State v. McDon- aid, 9 W. Va 456, involving a disqualification of an entirely different kind, without any inquiry whatever as to whether the rule ought to be the same in the two classes of cases. Moreover, the assignment of error based upon it in that case was disposed of in a single short paragraph. Its summary disposition may be due to the fact that a new trial was granted upon, other grounds, wherefore it was unnecessary to give the assignment extensive and careful consideration. In Traviss v. Common- wealth, 106 Pa, St. 597, in which relief was denied on account of relationship of a juror, the facts were peculiar and entirely different from those disclosed by this record. It was made clear that the juror did not know of the relationship for several days atfer the verdict and had never seen the murdered woman or heard of her. That made it extremely improbable that the relationship had in any way influenced his conduct on the jury. The burden was recognized as having rested on the State to show no injury and as having been discharged by the facts disclosed. In State v. Congdon, 14 E, I. 458, the court said: "We do not think we ought to grant a new trial simply on account of the relationship, in view of the fact that the relationship was so remote, and that the juror himself swears that he was ignorant of it and is corroborated in so swearing, without some more counter evidence than we have, and without some better reason than we have for thinking that the prisoner suffered an actual injury from, the presence of the juror on the panel." Here also the court rested its decision upon the peculiar facts and circumstances of the case, and treated the state as being subject to the burden of proof. There are very few instances of the denial of relief on this ground that are not disposed of in a similar manner. I think, therefore, that the great weight of authority marks and recognizes the distinction I have mentioned.

Under the general rule, relief is denied unless the applicant for a new trial can show injury or injustice resulting from the irregularity. What amounts to injustice or injury in such a case and how can it be shown? Under general principles of law, an undue advantage of one of the parties over the other in a trial, acquired in any way, other than by the negligence, waiver, agreement or fault of the complaining party, has always been regarded as an intolerable injustice and as constituting sufficient ground for the vacation of judgments and setting aside of verdicts....