Stephens v. State

• Decision Date: 18 December 1918
• Docket Number: Criminal 465
• Citation: 176 P. 579,20 Ariz. 37
• Parties: HARRY EARL STEPHENS, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

176 P. 579

20 Ariz. 37

HARRY EARL STEPHENS, Appellant, v. STATE, Respondent

Criminal No. 465

Supreme Court of Arizona

December 18, 1918

APPEAL from a judgment of the Superior Court of the county of Yavapai. John J. Sweeney, Judge. Reversed and remanded for new trial.

Messrs O'Sullivan & Morgan and Mr. A. C. Baker, for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. F. L. Haworth, County Attorney, Mr. P. M. Ling, Deputy County Attorney, and Mr. E S. Clark, for the State.

OPINION

JOHN WILSON ROSS, J.

An information was filed against the appellant on the thirtieth day of April, 1918, in the superior court of Yavapai county Arizona, charging him with the crime of murder in the first degree, in the killing of one A. R. Miller, a human being, on or about the second day of April, 1918. After a trial lasting several days, the jury returned a verdict on July 19, 1918, finding appellant guilty of murder of the first degree. On the twenty-fifth day of July, 1918, the court rendered judgment of conviction and sentenced appellant to imprisonment in the state prison at Florence, Arizona, for the period of his natural life. This is an appeal from the judgment and from the order of the trial court overruling appellant's motion for a new trial.

Appellant specifies seven assignments of error, but we will consider and dispose of in their order only three of appellant's assignments of error, and they are: Assignment of error No. 3, assignment of error No. 4, and assignment of error No. 5. Appellant's assignment of error No. 3 is to the effect that Juror C. E. Lady had both formed and expressed an unqualified and fixed opinion as to appellant's guilt, and that at the time of his examination on voir dire he entertained the same unqualified and fixed opinion. Juror Lady was examined upon his voir dire and challenged, and the challenge was disallowed. Defendant exercised his peremptory challenge to Juror Lady, and also exercised all his other peremptory challenges. On his voir dire he testified, in substance, as follows: "From what I have heard and read, I have formed an opinion. If chosen as a juror, I would try the case by the law and the evidence and in accordance with what transpired in court. At the time of the homicide, I read newspaper accounts, in the Journal Miner. I made up my mind as to whether the defendant was guilty or not guilty. I expressed an opinion as to whether he was guilty or not guilty. I have the same opinion at this time, gained from newspaper accounts and with talking with three or four different parties. I have the same opinion now that I formed and expressed as to whether the defendant was guilty or not guilty, and it has not changed a bit. My opinion is a decided opinion, one that is already formed and settled, as far as the condition of my mind is at the present time. If I were chosen as a juror, I would be guided entirely by the evidence and not by this opinion I now have."

The declaration of rights in our Constitution provides that the accused in criminal prosecutions shall have a speedy public trial by an impartial jury. Such safeguards are essential for the perpetuation of free government, and it is the duty of the courts to see to it that a speedy public trial by an impartial jury be granted to every person accused of crime, and to do so without fear or favor.

Section 1023 of the Penal Code of Arizona of 1913 provides that either party may challenge any individual juror for any of the causes mentioned in the 15 subdivisions of said section. The thirteenth subdivision of said section provides as a cause for such challenge:

"For the existence of a state of mind on the part of the juror in reference to the case or to the defendant or to the person alleged to have been injured by the offense charged, or on whose complaint the prosecution was instituted, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party."

Section 1024 of the Penal Code provides:

"When a challenge is made for the cause mentioned in subdivision 13 of the preceding section, the fact that a person called as a juror has formed an opinion or impression based upon rumor, or upon newspaper statements (about the truth of which he has expressed no opinion) shall not disqualify him to serve as a juror in such case, if he shall upon oath state that he believes he can fairly and impartially render a verdict therein, in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement."

Section 1025 of our Penal Code provides:

"The court shall instruct the jurors as to the distinction between a qualified and unqualified opinion, and if the person has formed or expressed an unqualified opinion he shall be excluded."

Juror Lady had both formed and expressed to others a fixed and unqualified opinion, and, according to the Penal Code, section 1025, supra, it was the duty of the trial court to have excused the said juror because a good ground of challenge was interposed.

Illinois has a statute very similar to section 1024, supra, and the supreme court of the state of Illinois has passed upon and construed such statute. Among other provisions in the Illinois statute (Hurd's Rev. Stats. 1917, c. 78, § 14) is found the following:

"Provided, further, that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged, if such juror shall state, on oath, that he believes he can render an impartial verdict, according to the law and the evidence: and, provided, further, that in the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression, based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion), shall not disqualify him to serve as a juror in such case, if he shall, upon oath, state that he believes he can fairly and impartially render a verdict therein, in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement." The Arizona statute and the Illinois statute being similar, what the supreme court of the state of Illinois has decided ought to be a guide in the construction to be placed upon the statute under consideration.

Our supreme court has also construed section 1024, supra.

In Coughlin v. People, 144 Ill. 140, 19 L.R.A. 57, 33 .N.E. 1, the court, after a thorough and learned discussion as to when a juror ought to be excused when challenged on his voir dire, says:

"But the holding of this and other courts is substantially uniform that, where it is once clearly shown that there exists in the mind of the juror, at the time he is called to the jury box, a fixed and positive opinion as to the merits of the case, or as to the guilt or innocence of the defendant he is called to try, his statement that, notwithstanding such opinion, he can render a fair and impartial verdict, according to the law and the evidence, has little, if any, tendency to establish his impartiality. This is so because a juror who is shown to have in his mind a fixed and positive opinion as to the guilt or innocence of the accused, is not impartial, as a matter of fact, to say nothing of those legal conclusions which formerly prevailed, and which would still prevail, if the statute were not in existence. His statement that he can render a fair and impartial verdict does not tend to show that he is not partial, since it does not tend to show the nonexistence of the fixed and decided opinion. . . . It merely tends to show that the juror, while admitting that he has prejudged the prisoner's case, believes in his ability to act as though he had not done so, or that, while admitting his actual partiality, he believes in his ability to act as though he were impartial. It being constantly kept in mind that the fact to be proved by the juror's answer is that he is impartial, in the constitutional sense of the word, it is difficult to see how, after a juror has avowed a fixed and settled opinion as to the prisoner's guilt, a court can be legally satisfied of the truth of his answer that he can render a fair and impartial verdict, or find therefrom that he has the qualification of impartiality, as required by the Constitution."

We conclude that a person who has formed and expressed an unqualified and fixed opinion as to the guilt or innocence of the accused in a criminal case is disqualified to serve as a juror in such case. As shedding light upon and in support of our conclusion, we cite the following cases: Leigh v. Territory, 10 Ariz. 129, 85 P. 948; Tegeler v. State, 9 Okl.Cr. 138, 130 P. 1164; People v. Cottle, 6 Cal. 227; People v. Edwards, 41 Cal. 640.

Appellant's assignment of error No. 4 complains that the court committed prejudicial error in charging the jury with respect to the matters of fact, and in commenting thereon, in direct violation of section 12, article 6, of the state Constitution of Arizona, and in giving argumentative instructions and instructions on the weight of the evidence; said instructions being as follows:

"You are instructed that even though you may find from the evidence that the defendant, on the day before, and in the forenoon of the day of the homicide, manifested at times...