Sullins v. State

• Citation: 95 S.W. 159
• Parties: SULLINS v. STATE.
• Decision Date: 28 May 1906
• Court: Supreme Court of Arkansas

95 S.W. 159

SULLINS v. STATE.

Supreme Court of Arkansas.

May 28, 1906.

Appeal from Circuit Court, Pope County; Wm. L. Moose, Judge.

Jesse Sullins was convicted of murder in the second decree, and appeals. Affirmed as a conviction of manslaughter.

In September, 1905, Jesse Sullins killed Sam Radcliff in Pope county, Ark., by stabbing him with a kinfe. Sullins was indicted for murder in the first degree. In selecting the jury to try the case M. P. Hanks was called for examination concerning his qualifications to serve on the jury, and gave answers to questions propounded to him as follows: "Q. Have you formed an opinion as to the guilt or innocence of the defendant? A. I suppose I have. Q. That is not such an opinion as would prevent you from going into the jury box and rendering a verdict by what the testimony shows? A. No, I think not. Q. You would be governed by the law and the testimony, would you not? A. Yes, I think so. Q. You have not talked with any one of the witnesses about it, have you? A. No, sir; I don't think so. All I saw was in the paper, and what come from rumor. I am a brother-in-law of Will Turner, a state's witness, and Mr. Turner is a man I have confidence in and rely on his statements, and he wrote the statement of the killing in the Chronicle. Mr. Turner is my brother-in-law and is the editor of the Atkins Chronicle, and the statement in that paper created an impression in my mind, and I have that opinion now and it would take testimony to remove it." The defendant exhausted all his challenges before the jury was complete. The other facts are sufficiently stated in the opinion. The defendant was convicted of murder in the second degree and sentenced to 21 years in the State Penitentiary. His motion for new trial being overruled, he appealed.

Brooks & Hays and J. A. Gillette, for appellant. Robt. L. Rogers, Atty. Gen., for the State.

RIDDICK, J. (after stating the facts).

This is an appeal from a judgment of murder in the second degree sentencing the defendant to 21 years' confinement in the State Penitentiary.

The first question presented was raised by the motion to quash the indictment, which was overruled by the circuit court. The motion set up that defendant was confined in the jail while the grand jury which found the indictment was being impaneled, and that he was given no opportunity to object to the competency of any member thereof. He further alleged that W. F. Turner, the foreman of the grand jury, had previously served on the coroner's jury to investigate the cause of the death of Sam Radcliff, and that the coroner's jury had returned a verdict holding the defendant for the murder of Radcliff; that Turner's name was indorsed on the indictment as a witness for the state, and that, for the reasons stated, he was not competent to serve on the grand jury; and that defendant would have challenged him had opportunity been given to do so. The statute of this state says that every person held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror on the ground that "he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution and has been summoned or bound in a recognizance as such; and, if such objection be established, the person so challenged shall be set aside. Kirby's Dig. § 2220. Now the defendant does not claim that Turner was the prosecutor or complainant against him. His challenge is based on the fact that Turner had served on the coroner's jury which investigated the killing of Radcliff, and on the further fact that his name was indorsed on the indictment as a witness for the state. But the fact that he had served on the coroner's jury is not, under the statute, a ground of challenge to a grand juror, nor is the fact that he was a witness on the part of the state cause for such challenge unless he has been already "summoned or bound in a recognizance" as such witness at the time of such challenge. As it was not shown that Turner had been summoned or entered into recognizance to appear as a witness, it is plain that defendant had under the statute, no ground of challenge against Turner as a member of the grand jury, and that the failure to give him an opportunity to challenge worked no prejudice to him. The motion to quash was therefore properly overruled.

The next question raised relates to the ruling of the trial judge on questions concerning the competency of certain persons to serve as jurors on the trial of the case. A number of the regular jurors and talesmen stated on examination that they had formed opinions concerning the guilt or innocence of defendant that it would take evidence to remove. But, on further examination, it was shown that the opinions of these jurors were formed from rumor or from reading newspapers only and were not such as to disqualify them from serving on the jury. We attach little importance to their statements that it would take evidence to remove the opinions held by them, for if one has an opinion of any kind, it is natural that it should take evidence of some kind to remove it. That would be true of an opinion formed from rumor merely, but our statute expressly provides that such an opinion shall be no ground for challenge. Kirby's Dig. § 2366. "It is a matter of common knowledge that we all form opinions from rumor, and from reading newspapers, which we retain until we hear another version of the matter, or until time or forgetfulness or something has removed them from our minds. If one called for examination as a juror should have an opinion of that kind concerning the case, however slight the importance he attached to it, he yet might truthfully say that, if put on the jury, it would remain on his mind until he heard something to the contrary — in other words, that it would take evidence to remove it. It does not by any means follow that he would, if placed on the jury, be influenced by such opinion, or allow it to take the place of evidence." Hardin v. State, 66 Ark. 53, 48 S. W. 904. The presumption should be that when one is placed on the jury and hears direct testimony as to the facts of a case that his previous opinion formed from rumor merely will be disregarded entirely and the case tried on the evidence only. If, however, the examination shows that the opinion of the juror is a fixed opinion and one not likely to yield to the evidence, and of a kind to affect his judgment of the case, he should be discharged whether his opinion was formed from rumor or not. In this case the facts brought out on examination were not sufficient to overturn the finding of the circuit judge that these jurors were unbiased and competent to serve on the jury, except as to one of them. The examination of M. P. Hanks convinces us that the opinion held by him was such as to disqualify him from service on the jury. It has been decided by this court that an opinion formed not from rumor only, but from talking with witnesses who claimed to know the facts, disqualifies a juror. Caldwell v. State, 69 Ark. 322, 63 S. W. 59. Now, by reference to the statement of facts, it will be seen that while Hanks testified that he had not talked with any of the witnesses in the case, he states that his opinion was formed from reading a report of the homicide in a newspaper written by Will Turner, his brother-in-law, who was also a witness for the state. The juror stated that he had confidence in his brother-in-law and relied on his statement published in the paper, and formed an opinion from reading it, which opinion he still held and which it would take evidence to remove. It is true that this juror stated that he did not think the opinion entertained by him would prevent him from rendering a verdict in accordance with the evidence, and that he thought he would be governed by the testimony. But as the juror knew that his brother-in-law was a witness for the state, an opinion formed from reading an article written by him was, in effect, an opinion based on the statement of a witness. Ordinarily opinions formed from newspaper reports do not disqualify, but when the author of the report is known to the juror as a witness in the case, and is a person in whom he has confidence, then an opinion formed from reading his statement disqualifies just as an opinion formed from talking with such witness would disqualify. In other words, if an opinion formed from talking with one known to be a witness disqualifies, then an opinion formed from reading a written report of the facts of the homicide made by one known to be a witness and in whom the juror has confidence must also disqualify, because in each case the juror knows that the statement on which he bases his opinion is not a mere rumor but a statement...