Vance v. State

• Decision Date: 25 June 1892
• Parties: VANCE v. STATE
• Court: Arkansas Supreme Court

19 S.W. 1066

56 Ark. 402

VANCE v. STATE

Supreme Court of Arkansas

June 25, 1892

APPEAL from Garland Circuit Court, A. M. DUFFIE, Judge.

Judgment reversed and cause remanded.

E. W Martin for appellant.

1. It was error to allow North and Simpson to sit as trial jurors. 45 Ark. 165; 40 id. 165.

2. The court erred in refusing to allow expert witnesses to remain in the court room during the trial. Rogers, Expert Testimony 64, 36 Ark. 117-124; 1 Wharton, Ev. sec. 492.

W. E Atkinson, Attorney General, and Chas. T. Coleman for appellee.

1. Defendant's peremptory challenges were not exhausted when North and Simpson were called as jurors. 50 Ark. 498; 97 N.C. 471; 21 Neb. 436; 4 id. 75; 49 N.W. 148; 9 So. 114.

2. Jurors are not disqualified by having preconceived notions about the merits of the case, if not of a nature to influence their conduct. 47 Ark. 185.

3. The exclusion of witnesses from the court room, except the one testifying, is within the discretion of the court. An exception is often made of experts, but it is not error to exclude them. Whart. Ev. sec. 491; Taylor, Ev. sec. 1400; Gr. Ev. p. 519, note 1; 1 Bish. Cr. Pr. sec. 1190; 58 Am. Rep. 638.

OPINION

HUGHES, J.

The appellant was convicted of an assault with intent to kill, and brought his case to this court by writ of error.

Upon examination of G. H. North and Eli Simpson, two of the jurors who tried the case, upon the voire dire, each of them stated that he had formed an opinion as to the defendant's guilt or innocence, and that it would require evidence to remove that opinion. Eli Simpson stated that he was in an adjoining room to that where the defendant did the shooting, eating dinner, and that he heard the shots, jumped up, ran out, and saw the defendant running or going in a fast walk up the street with a smoking pistol in his hand. On examination by the court each of these jurors stated that he could discard the opinion he had formed and give the defendant as fair and impartial a trial as if he had never heard of the case. They were each challenged by the defendant for cause. The court declared them competent, to which the defendant excepted. Defendant had exhausted his peremptory challenges allowed by law before the jury was completed, and he was compelled to accept these jurors, which he did under protest.

The defendant's defense was insanity.

At the beginning of the trial the defendant asked that the expert witnesses be allowed to remain in the court room and hear all of the evidence in the case, and then give their opinions upon it as to the defendant's sanity or insanity, assuming that the evidence was true. The court refused, and the defendant excepted.

The ruling of the court as to the competency of the jurors, North and Simpson, and the court's refusal to allow the expert witnesses to remain in the court room, are insisted upon as errors for which the judgment should be reversed.

"That a juror has formed any opinion in such a case renders him prima facie incompetent, and it is for the State to show that such opinion is based on rumor and not of a nature to influence his conduct. But one who leaps in advance both of evidence and law, and settles in his own mind the question of guilt, is not fit to be a juror in the cause. The juror must be indifferent between the State and the prisoner. The burden of eradicating preconceived opinions upon the merits ought not to be cast upon either party. The fact that the jurors further said that they could try the case impartially was entitled to no consideration, in the face of their admissions that their minds were preoccupied by impressions of the case." Polk v. State, 45 Ark. 165, and cases cited. The jurors, North and Simpson, were incompetent, and should have...