West v. State

• Decision Date: 28 November 1921
• Docket Number: 1
• Citation: 234 S.W. 997,150 Ark. 555
• Parties: WEST v. STATE
• Court: Arkansas Supreme Court

234 S.W. 997

WEST v. STATE

150 Ark. 555

No. 1

Supreme Court of Arkansas

November 28, 1921

Appeal from Pulaski Circuit Court, First Division; J. W. Wade Judge; affirmed.

Affirmed.

Mehaffy Donham & Mehaffy, for appellant.

Four of the jurors who, on their examination, said they had formed or expressed an opinion as to the guilt or innocence of the defendant, were not competent to serve. 13 Ark. 741; 19 Ark 159; 45 Ark. 170; 47 Ark. 185; 56 Ark. 583; 69 Ark. 322; 79 Ark. 132; 85 Ark. 68; 91 Ark. 579; 102 Ark. 183; 113 Ark. 304; 135 Ark. 524; 142 Ark. 479; 146 Ark. 582.

The evidence was not sufficient to show that the dogs were properly trained nor were they properly handled. 46 Sou. 166; 16 L. R. A. (N. S.) 285; 116 S.W. 344.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

Opinions formed on hearsay, rumor and from reading newspapers, are not sufficient to disqualify a juror. 72 Ark. 613; 79 Ark. 127; 80 Ark. 13; 85 Ark. 64; 101 Ark. 443; 103 Ark. 21; 104 Ark. 616; 109 Ark. 450; 113 Ark. 301; 114 Ark. 472; 141 Ark. 496.

The testimony as to the bloodhounds being experts in their line was admissible, the proper foundation having been laid. 116 Ark. 227; 125 Ark. 471.

OPINION

MCCULLOCH, C. J.

This appeal is from a judgment of conviction under an indictment charging appellant with the crime of rape. The charge is that appellant assaulted and raped a certain young woman on the night of March 19, 1921, in the city of Little Rock.

The assaulted female testified that on the night mentioned she rode home on a street car from her place of work, and walking a short distance after she debarked from the car she was met and assaulted by a negro man, whom she identified as appellant, and another negro, about whose identity she was uncertain.

It appears from the record that there was a former mistrial of the case before a jury which was discharged.

The first assignment of error relates to qualifications of several talesmen, each of whom appellant challenged peremptorily after the court had refused to sustain challenges for alleged cause, and later appellant exhausted all of his challenges. One of them testified that he had formed an opinion in regard to the guilt or innocence of the accused, and that the opinion was formed from reading newspaper accounts of the crime and from hearing a discussion of the case between two of the jurors at the former trial. He testified that he had heard two of the jurors discuss the merits of the case and had read the accounts in the newspapers and formed an opinion, but that he could not state that the opinion was formed exclusively from either of the sources mentioned, and further stated that he could lay aside that opinion and be controlled, in arriving at a verdict, by the testimony adduced at the trial. Another one of them testified that he had heard the case discussed, that he heard a part of the argument in the former trial of the case and formed an opinion, but that it was not a fixed or definite opinion, and that he could lay it aside and be controlled by the evidence adduced at the trial. Another one testified that he had formed an impression from what some one had told him what a juror in the former trial had said about the case, but that he had no fixed opinion, and could lay aside the impression thus obtained and try the case according to the law and the evidence adduced.

The law with reference to the qualifications of jurors has been often discussed in the decisions of this court, and it is scarcely necessary to reiterate what has already been said. The oft-repeated rule announced is that the entertainment of a preconceived opinion about the merits of a criminal case renders a juror prima facie incompetent; and unless it is shown that such opinion is based on rumor or is not of a nature calculated to influence an intelligent and fair-minded man, the disqualification is established, notwithstanding he states that he can lay aside the opinion and try the case upon the evidence adduced at the trial. Polk v. State, 45 Ark. 165; Hardin v. State, 66 Ark. 53, 48 S.W. 904; McGough v. State, 113 Ark. 301, 167 S.W 857. In the present instance it fairly appears that the opinions of these talesmen were founded, not on narratives of what purported to be the facts in the case, but upon newspaper accounts and other discussions. It is true that one of them said that he heard a discussion between two jurors which influenced him in arriving at an opinion, and another stated that he had heard a portion of the argument at the former trial, but neither of them stated that he heard a narrative of the facts in the case nor what purported to be the testimony of the witnesses. An opinion thus founded is not one calculated to influence an intelligent juror when he declares himself to be able and willing to discard such opinion and try the case upon the testimony adduced at the trial. In other words, it is such an opinion that can be discarded by an intelligent and fair-minded person without having testimony to remove it. Neither of the talesmen said that the opinion entertained was based on a statement by the jurors in the former trial of the facts or what purported to be the facts. The examination was had by the trial judge, and he was in situation to correctly determine whether or not the jurors entertained settled...