State v. Richards

• Citation: 132 S.E. 375
• Decision Date: 02 March 1926
• Docket Number: (No. 5588.)
• Court: Supreme Court of West Virginia
• Parties: STATE. v. RICHARDS et al.

132 S.E. 375

STATE.
v.
RICHARDS et al.

(No. 5588.)

Supreme Court of Appeals of West Virginia.

March 2, 1926.

(Syllabus by the Court.)[132 S.E. 376]

Error to Circuit Court, Doddridge County.

Ralph Richards, Roscoe Cross, and Samuel Elliott were convicted of murder, and they bring error. Affirmed.

M. K. Duty, of Pensboro, for plaintiffs in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MILLER, J. Defendants were indicted, tried and convicted of the murder of James Powell, on the night of December 23, 1924, at his home in Doddridge county, and sentenced to imprisonment in the penitentiary for the period of their natural lives.

To reverse the judgment of imprisonment pronounced on April 25, 1925, counsels' first proposition is, that the jury trying the case was unlawfully impaneled, in that the panel of twenty jurors from which the trial jury was selected were not qualified jurors. On their voir dire seven of the panel had stated that they had made up and expressed an opinion as to the guilt or innocence of the defendants, and four of these said that it would take evidence to change their opinions; and these four were among those selected and sworn to try the case; and a fifth said, that from reading the newspapers that defendants had confessed, he thought they were the guilty parties, but that he did not know-. But the Attorney General would affirm the judgment on the ground that each of these jurors qualified themselves by their answers to certain other questions propounded to them by the court, to the effect that, regardless of what they had read and heard about the case, and the opinions any of them had expressed, they would take the evidence of the witnesses, and the law as it might be propounded by the court, and give the defendants a fair and impartial trial according to the law and the evidence; and to the further question by the trial judge, "Will you and each of you do that?" they answered that they would. The fact most strongly urged is the admission of four of these jurors that it would take evidence to change their opinions previously formed. In impaneling jurors courts should not too lightly consider the provision of the Constitution and statutes granting to those accused of crime trial by an "impartial" jury, and a jury free from exception. Article 6, Const. Amend. U. S., and section 3, chapter 159, Code W. Va. Neither of the jurors impaneled was specifically asked whether he was conscious of any bias or prejudice against the accused, as he should have been, perhaps; but his answers to the questions which were addressed to him, in connection with the other evidence on the subject, we think imply that each was free from all bias and prejudice, and was prepared to try the case as presented to him. In State v. Schnelle, 24 W. Va. 767, it was held that if a proposed juror shows to the satisfaction of the court on his voir dire that, notwithstanding a previously expressed opinion of the guilt or innocence of the accused, his mind is free from bias and prejudice, and the contrary is not shown, he is a competent juror and ought not to be rejected.

The close question presented here is, did the jurors who said it would take evidence to change their opinions thereby disqualify themselves to sit as jurors in the case? Having answered that they could and would give the prisoners a fair and impartial trial according to the law and the evidence, what did they mean by saying it would take evidence to change their previously formed opinions? They could not have meant that they would start upon the trial with any preconceived and decided opinion on the question of guilt or innocence of the defendants; they could have meant simply that if on the trial the evidence did not warrant conviction, their opinions based necessarily

[132 S.E. 377]

on newspaper reports or gossip in the county, tentative opinions, would be surrendered, and their verdict given according to the law and the evidence. We have perhaps written enough on this subject to render it a work of supererogation to write more. State v. Schnelle, supra; State v. Baker, 10 S. E. 639, 33 W. Va. 319; State v. Hatfield, 37 S. E. 626, 48 W. Va. 561; State v. Johnson, 39 S. E. 665, 49 W. Va. 684; State v. Moneypenny, 94 S. E. 540, 81 W. Va. 362; State v. Lutz, 101 S. E. 434, 85 W. Va. 330; State v. Toney, 127 S. E. 35, 98 W. Va. 236; State v. Messer, 128 S. E. 373, 99 W. Va. 241, 40 A. L. R. 608. The rule as most recently stated is that if the answers of the jurors are so unequivocal and satisfactory as to convince the trial court of the juror's fairness and impartiality, the reviewing court will not disturb the judgment below accepting the juror. State v. Toney, supra. To disqualify one proposed as a juror in a case like this, on account of a previously formed or expressed opinion, his opinion must have been deliberate and decided. But if he hesitates or is in doubt as to his ability to disregard such opinion and with an. unbiased and unprejudiced mind to give the accused a fair and impartial trial, it would be error to accept him as qualified to try the case. In State v. Messer, we decided that a juror whose opinion was of such a decided character that he could not give due weight to the presumption of innocence of the accused and would not" acquit unless the defendant should prove himself innocent, was incompetent. While...