Whitehead v. State

• Decision Date: 16 May 1910
• Docket Number: 14602
• Citation: 97 Miss. 537,52 So. 259
• Court: Mississippi Supreme Court
• Parties: BENJAMIN WHITEHEAD v. STATE OF MISSISSIPPI

52 So. 259

97 Miss. 537

BENJAMIN WHITEHEAD v. STATE OF MISSISSIPPI

No. 14602

Supreme Court of Mississippi

May 16, 1910

FROM the circuit court of, first district, Carroll county, HON GEORGE A. MCLEAN, Judge.

Whitehead appellant, was indicted and tried for burglary, convicted and sentenced to the penitentiary and appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

S. E Turner and J. G. Hemingway, for appellant.

The motion for a continuance in this cause should have been sustained, for the reason that the voir dire examinations of the jurors and proffered jurors clearly show that they were not competent to give the appellant that fair and impartial trial guaranteed by the constitution and laws of the state. Klyce v. State, 79 Miss. 652, 31 So. 339; Fugate v. State, 82 Miss. 189, 33 So. 942; Nail v. State, 70 Miss. 32.

Our legislature, in Code 1906, § 2355, has gone to the very extreme length of the law making power. It was careful to provide that the exclusion of a juror shall not be assignable for error, thus emphasizing the idea of liberal interpretation in favor of the accused. Nor does the section necessarily imply that a man is competent who has a fixed opinion. It simply uses the word "impression or opinion." It would simply nullify the constitutional provision, and seriously endanger the fairness of trials, to hold a juror who has an opinion competent merely because he could try the case impartially. He may affirm so, and may think so, but it is for the court to say whether he in fact can, viewed in the light of the weakness of human nature.

The court should have granted the appellant a new trial, because the verdict was contrary to the law and the evidence. A careful examination of the testimony of the witnesses will substantiate the contention that it was not sufficient to warrant a conviction, for the reason, that appellant unquestionably established an alibi.

James R. McDowell, assistant attorney-general, for appellee.

The jury was fully warranted in convicting the appellant. The facts are disputed in some particulars, but the jury settled that question.

It seems that some of the jurors had heard fragments of the testimony in the trial of Jackson a day or two before the appellant was put on trial and others had heard rumors of the alleged burglary and had testified in their voir dire examinations that they had an opinion or impression about the case, but each and every one of them testified without hesitation that he could disregard anything he had heard and give the appellant a fair and impartial trial and that he would do so, and that the verdict would be based entirely upon the evidence, adduced at the trial. Each and every one of them testified that he had no fixed opinion and no desire to reach any other than a correct verdict supported by the law and the evidence.

They were all clearly competent under Code 1906, § 2685. We call attention to the wide latitude permitted counsel for appellant in his examination touching the qualifications of jurors.

The true test is, has a juror formed or expressed a fixed opinion or an opinion which he could not set aside after hearing all the testimony and which he could not disregard in arriving at a verdict?

No juror is incompetent because he has heard the case talked about even in the form of a detailed statement, or because he has read about the case in the newspapers or because he has some personal knowledge of the facts involved, unless he has a decided, fixed or unqualified opinion, or, even stating it more strongly, an opinion which would take considerable, strong, or conclusive evidence to remove, or where such juror believes that this opinion might not yield to the evidence adduced at the trial, or might affect the verdict.

OPINION

MCLAIN, C.

At the April term, 1909, of the circuit court of the first district of Carroll county, the appellant, Ben Whitehead, was tried, convicted, and sentenced for a term of five years in the penitentiary for the burglary and larceny of the storehouse of W. B. Posey, from which judgment and sentence he prosecutes this appeal.

There are many assignments of error by appellant in this cause, but the one he presses with much force and zeal is that he was not given a trial by an impartial jury such as is guaranteed to him by section 26 of the Constitution of 1890. To have a clear conception of this assignment of error, it is necessary to give a brief statement of some of the facts. At the April term, 1909, of the circuit court of the first district of Carroll county, I. N. Brownlow, Gentry Jackson, and appellant were separately indicted for the burglary and larceny of the storehouse of W. B. Posey. All three cases were continued to the October term, 1909, of said court, and during the first week of said term Brownlow was put on trial, which resulted in a mistrial. During the second week Gentry Jackson's case was tried, resulting in a conviction. While the jury in the case of Gentry Jackson was deliberating on its verdict, the case of appellant was called. He presented to the court a motion for a continuance, stating, among other things, that appellant does not believe that he can safely go to trial before the panels of the present week, or of any member thereof, for the reason that Brownlow and Jackson were tried for the same identical offense, the only difference being that they were indicted separately, and not jointly; that the jury trying the said case of Gentry Jackson was composed of eight members of the two regular panels for the second week of the term; that eleven members of the said two panels were declared incompetent by the court upon their voir dire examination; that two members of the said two panels were excused peremptorily by the state; that three members of the said two panels were...