State v. Smith

• Decision Date: 06 July 1906
• Docket Number: 14,811
• Citation: State v. Smith, 74 Kan. 383, 85 P. 1020 (Kan. 1906)
• Parties: THE STATE OF KANSAS v. W. L. SMITH
• Court: Kansas Supreme Court

85 P. 1020

74 Kan. 383

THE STATE OF KANSAS v. W. L. SMITH

No. 14,811

Supreme Court of Kansas

July 6, 1906

July 6 1906.

Filed February 9, 1907

Appeal from Comanche district court; EDWARD H. MADISON, judge.First opinion filed July 6, 1906.Reversed.Rehearing allowed October 6, 1906.Second opinion filed February 9, 1907.Judgment of the district court affirmed.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW -- Opinion of a Juror -- Challenge for Cause.Where in a criminal trial the examination of a juror upon his voir dire discloses that he has formed an opinion as to the existence of a fact material to be proven on the trial, and upon his belief of such fact has formed an opinion as to the defendant's guilt, such juror should be excused from service upon a challenge for cause.

C. C. Coleman, attorney-general, and R. A. Strain, county attorney, for The State; Francis C. Price, of counsel.

Dale & Amidon, and John W. Davis, for appellant.

SMITH J.All the Justices concurring.

OPINION

SMITH, J.

The appellant was convicted of the crime of statutory rape in the district court of Comanche county, and appeals to this court.The evidence was of the most extraordinary character, and, aside from the circumstance that the defendant departed from the state and was arrested elsewhere, which fact seems to have been given great prominence, consisted almost entirely of the statements of the injured party.While there is evidence sufficient to sustain the finding of the jury, the statements of the injured party, long persisted in out of court, were contradictory of her sworn testimony; and this, together with the extraordinary character of the crime as related by her, suggests that at another trial new facts may be developed and another jury may come to a different conclusion.

The principal error assigned upon the trial relates to the qualification of juror O. E. Fish.Referring to the departure of the defendant from the state, the following is a portion of the evidence given by this juror upon his voir dire:

"Ques.You mean by that that you heard no contradiction of it and you did believe it?Ans.I believed that he had gone; yes."

"By the court: How is that?A.I believed that he went away; yes."

"Q.And you believed that he went away contrary to law?A.Yes, sir.

"Q.And was brought back by the sheriff?A.Yes, sir; that is the way I heard it.

"Q.And you feel that you are called to believe that at this time?A.Yes, sir."

"Q.Well, now, it would take some evidence at this time submitted by the defendant in his behalf to remove the various partial opinions that you have formed?A.I rather think it would.

"Q.And they relate to the question of his guilt or innocence?A.Yes, sir.

"Q.And on that you have partially made up your mind?A.Why, I assumed that he would be guilty or he would not have went away.I would have no opinion only he went away."

"Q.Has anything occurred to change that belief in your mind?A.I don't think there has."

"Q.Well, if this case was submitted to you, if this case was submitted to you now you would require some evidence on the part of the defendant to remove the impression just testified to that you previously formed, would you not?A.Yes, sir."

"Q.What is that impression based on?A.On the ground that he was arrested on that charge.

"Q.And brought back here from New Mexico?A.Yes, sir.

"Q.And it is also based on what you have heard about the case?A.No, sir; I never heard anything in particular about the case, only just that they had made the arrest.

"Q.Then if testimony should be offered to that feature of this case then it would have some influence on your verdict?A.It probably would.

"Q.Regardless of anything the defendant might testify to on that issue?A.I do not know what he would testify to, but of course I would go according to the evidence as near as I could.

"Q.At this time you would require the defendant to testify to something to remove that opinion from your mind?A.Yes, sir."

While the juror modified these statements somewhat under suggestive questions by the court and testified that he thought he could set aside the opinion he had formed and determine the case according to the evidence, yet it is apparent that he started into the trial (the defendant's challenge to his competency having been overruled) with an opinion that the defendant had fled from the state; that by reason of that fact he believed the defendant guilty; and that to remove such opinion the defendant himself would have to testify, and would have to satisfy the juror from such testimony, that he went for some other reason and not for the reason that he was accused of the crime.The fact that the defendant had left the state and was rearrested in New Mexico and brought back was conceded by all on the trial.Hence this juror was in the position of having formed an opinion before the trial that the defendant was guilty, upon a fact...