State v. SIMS

• Decision Date: 29 December 1947
• Docket Number: No. 5051,5051
• Citation: 188 P.2d 177,51 N.M. 467
• Parties: STATE v. SIMS.
• Court: New Mexico Supreme Court

51 N.M. 467

188 P.2d 177

STATE

v.SIMS.

No. 5051.

Supreme Court of New Mexico.

Dec. 29, 1947.

[188 P.2d 177, 51 N.M. 468]

Otto Smith and Carleton Davis, both of Clovis, for appellant.

C. C. McCulloh, Atty. Gen., and Robert V. Wollard, Asst. Atty. Gen., for appellee.

McGHEE, Justice.

The defendant was convicted of contributing to the delinquency of a seven year old girl.

His first ground for reversal is his claim that the trial court erred in overruling his challenge for cause to the juror Barnett, who was called into the box after he had exhausted his peremptory challenges. We quote the following from the examination of this juror:

By Mr. Rowley (Assistant District Attorney):

'* * * Q. Do you have a family? A. Two daughters.

'Q. Would the fact that you have two daughters yourself * * * would that tend to bias or prejudice you in a case of this kind, just because it is a case of this kind? A. I believe it would.

'Q. You say you have never heard what the facts might be? A. Nothing except I heard the charge read.

'Q. Would the mere fact that a man is charged cause you to be prejudiced againsthim? A. Well, yes, if he is charged with it there is reason to believe it did happen.

'Q. You understand that in the trial of any criminal case a defendant is presumed to be innocent until he is proven guilty? A. Yes, sir.

'Q. And that a jury must agree unanimously on his guilt? A. Yes.

'Q. In the face of that, do you feel it would be impossible for you to sit as a juror and give the defendant a fair trial, just because he is charged with an offense? A. No, sir.

'Q. Of course, an offense of this kind is one that none of us like to think about. The mere fact that a man is charged wouldn't make you unfair to him if you are selected as a juror? A. No, sir.

'Q. If selected as a juror, would you try the case solely on the evidence you hear from the witness stand and the law given by the Court? A. Yes, sir.

'Q. You could, and would do it if selected as a juror? A. Yes.

* * *

'(Questions for the defendant by Mr. Davis, answers by juror J. O. Barnett:)

'Q. Mr. Barnett, you say you have two daughters? A. Yes, sir.

'Q. And as a result of having two daughters your feelings in a case of this kind would be possibly stronger than a person without children? A. Yes.

'Q. Do you feel that if the decision in this case narrowed down to a fine point, where it was practically impossible to tell which way the finger would turn, do you feel you might possibly be inclined, owing to the feeling you have toward this sort of offense, to find against the defendant? A. Yes, I am afraid so.

'Mr. Davis: Challenge the juror for cause.

'The Court: Mr. Barnett, the defendant is presumed to be innocent and that presumption remains with him until you hear all the evidence in the case, and until you are convinced of his guilt beyond a reasonable doubt by all the evidence in the case. Can you hear the testimony and give the defendant that presumption of innocense and try the case solely on the evidence and the law?

'A. He said if it came to a fine point. You say beyond a reasonable doubt. If I had any doubt it would be against the defendant, if it was that close.

'The Court: I know, but the State is the one that is required to prove his guilt beyond a reasonable doubt. The defendant doesn't have to prove anything. A. I'm sorry, but I am new at this thing. I am certainly confused about the whole thing. Would you state that over again?

'The Court: Let me say it this way: The defendant is presumed to be innocent and the State must do the proving. A. Yes, sir.

'The Court: The defendant does not have to take the stand; he doesn't have to prove anything in his own behalf. The State is required to establish his guilt to your satisfaction and beyond a reasonable doubt by the evidence in the case. Can you give the defendant that presumption of innocence and try the case solely on the law and the evidence? A. I will certainly try to be fair, I will put it that way.

'The Court: There has nothing ever happened in connection with your family that would cause you to have any particular prejudice against an offense of this nature? A. No, sir.

'The Court: You think you can try the case without any bias or prejudice toward the defendant? A. Yes, I think I can do that alright. The point I am confused about, he said if it came down to a narrow point one way or the other. In my mind I am sure I would be should be prejudiced.

'Mr. Davis: I think that is sufficient answer. I think he should be excused.

'Mr. Rowley: I don't think so. Mr. Barnett stated he would be fair and that he would recognize the presumption of innocence. As he says, he is confused. Counsel said if it came to a hair line balance, or something of that sort. I think that is a rather confusing way to put it. If that question were put to any man in just that way,I doubt if he would know how to answer it. He states he will be fair and render a fair and impartial verdict based on the evidence and the law. I believe that is as far as he is required to go.

'The Court: Mr. Barnett, on the question of the hair-line balance, or some words to that effect. I have never heard that expression used. I don't know what the attorney had in mind, or what you have in mind in respect to that. If there is any hair-line doubt it is your duty to acquit the defendant instead of finding him guilty. His guilt must be proven to your satisfaction and beyond a reasonable doubt. With that explanation, can you try the case fairly? A. Yes, sir.

'The Court: Challenge overruled.

'Mr. Davis: Exception.'

The trial court is necessarily invested with a wide discretion in the superintendence of the process of impaneling the jury and in the absence of unusual circumstances we will not disturb its...