Young v. State
| Decision Date | 15 March 1923 |
| Parties | YOUNG v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.
W. H Young was convicted of manslaughter, and he brings error.
Reversed.
Syllabus by the Court
Right to peremptory challenges may be waived; wrongfully requiring accused to exhaust peremptory challenges prejudicial error. The right to peremptory challenges to persons tendered as jurors in a criminal case is one that may be waived, but to wrongfully require the defendant to exhaust his peremptory challenges is harmful error.
Duty of plaintiff in error to show erroneous judgment below resulting in denial of his rights. It is the duty of a party complaining in an appellate court of the judgment of a lower court that it was erroneous, and was obtained by the denial to him of rights to which he was entitled, to make such clearly to appear to the court to which he appeals.
Overruling challenge of accused to unqualified juror for cause after exhaustion of peremptory challenges not reversible error where juror did not serve. If it is shown by the record that a venireman who is unqualified to serve upon a jury in a criminal case, because he is not impartial, is tendered by the state, and a challenge by defendant for cause is overruled, the record disclosing that the juror did not serve, and defendant exhausted his quota of peremptory challenges, reversible error is not made to appear.
Compelling accused to use peremptory challenge on objectionable juror after full quota of challenges exhausted reversible error. In order for the defendant in a criminal case, who has been wrongfully required to use one of his peremptory challenges of proffered jurors, to make the error so committed appear to be harmful or reversible, it is necessary to show that the juror served, and defendant's full quota of challenges had been exhausted, or that he was required to use one of his peremptory challenges upon the objectionable person, and his full quota of challenges was exhausted.
Presumption that jury impartial. The presumption obtains in favor of the correctness of the judgment of the trial court that a jury selected and drawn to serve in a criminal case was an impartial one.
Former bills of exception as evidence in criminal cases prohibited. Section 2723, Rev. Gen. St. 1920, providing for the use of former bills of exceptions as evidence under conditions named, was amended by chapter 8572, Laws 1921, so as to prohibit the use of former bills of exceptions as evidence in criminal cases.
Error in admission of transcript of stenographer's notes of testimony of witness for state at former trial of accused not cured by subsequent testimony of witness. It is harmful error to admit in evidence over the defendant's objection the transcribed stenographic notes of the testimony of a witness for the state at a former trial of the defendant upon the same indictment, and such error is not cured by subsequently producing the witness and causing him to give his testimony in person, although there is only slight variance between the stenographic report and the witness' testimony on the second trial.
Map plan or picture, whether a sketch or a photograph, verified as true representation of subject of testimony, admissible. A map, plan, or picture, whether made by the hand of man or the process of photography, if verified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case.
Pat Whitaker and H. Blaine Peacock, both of Tampa for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
In June, 1921, Herman Young was indicted for the murder of Henry B. Driggers. The offense was alleged to have been committed in Hillsborough county on April 2, 1921. Hallie J. H. Ellis, Granville Ellis, and William H. Young, the plaintiff in error, were charged in the indictment to have been present aiding and abetting the commission of the murder. The plaintiff in error pleaded not guilty. A severance was granted upon motion of the state attorney, and Young was placed on trial April 25, 1922.
The jury returned a verdict of manslaughter, and judgment and sentence were entered against him. He seeks to reverse the judgment on writ of error.
At the very threshold of the case the point is presented that the plaintiff in error was denied a fair trial because a certain venireman called to serve as a juror was held by the court to be qualified as an impartial person, over the defendant's objection that it appeared from the answers of the venireman to the questions propounded by the court, and its authority as to his qualifications, that he was not an impartial person, and therefore not such a person as is contemplated by the Constitution shall serve as a juror in the trial of a felony.
The venireman, who was named T. T. Graham, admitted upon his voir dire examination that he had 'formed or expressed' an opinion as to the guilt or innocence of the accused; that it would require evidence to remove the opinion he had formed, which he would hold to unless the evidence changed it. He could not say whether his opinion, formed from newspaper articles purporting to give an account of the transaction, would readily yield to the evidence adduced upon the trial. He afterwards said it would not yield readily to the evidence, that is, 'easily' yield; that his opinion was 'fixed' so far as he knew; that he was 'open to arbitration.' He explained that phrase as meaning 'open to conviction if he was wrong;' that he would 'have to be shown;' that his position would be an embarrassing one. The proposed juror's answers appeared to vacillate between bias and the absence of it, certainty and the lack of it as to the character of his opinion, whether it was fixed or not, would or would not yield easily or readily to the evidence according as he was questioned by the court, the state attorney, or the defendant's counsel.
A person so uncertain of his mental attitude toward another, on trial upon a grave and serious charge, so doubtful as to whether a prejudgment by him would influence his deliberations as a juror, who forms an opinion concerning the innocence or guilt of the accused upon a newspaper account of the alleged crime, whose opinion is fixed, and would require to be 'shown' that such opinion is wrong, cannot be said to be an impartial juror should he be chosen to serve as one.
But the man did not serve as a juror, nor does the record show that the defendant exhausted one of his peremptory challenges in excluding the venireman from the panel. But the record does show that the defendant exhausted his full quota of 10 peremptory challenges.
The proposed juror was challenged for cause by the defendant, and the challenge was not sustained by the court, who held that the venireman was qualified. Exception was duly taken to this ruling, and it is the basis of the first assignment of error.
The record does not disclose that the 12 persons who served as jurors in the case were partial, nor that any one of them was not an impartial juror. So far as the record discloses to the contrary, the defendant obtained a trial by an impartial jury.
The right secured by the statute to a person on trial for a capital offense to challenge peremptorily 10 persons tendered by the state as jurors to try the case is a right that the defendant may waive. He is not bound to exhaust his full quota of challenges. The purpose is that there may be full assurance of the constitutional guaranty of a trial by an impartial jury. If the defendant is wrongfully required to use one of these 10 challenges upon a person tendered as a juror, who should have been excused for cause, and exhausts his full quota of challenges, harmful error is undoubtedly committed. See Mathis v. State, 45 Fla. 46, 34 So. 287. But if the person tendered is held to be qualified, but does not serve, and the record does not show that the defendant used one of his peremptory challenges, all of which were exhausted, in excusing the prejudiced venireman, can it be said that harmful error has been made to appear? See Green v. State, 40 Fla. 191, 23 So. 851.
It is the duty of a party complaining in an appellate court of the judgment of a lower court that it was erroneous, and was obtained by the denial to him of rights to which he was entitled, to make such error clearly appear to the court to which he appeals, if in truth such error exists. All presumptions are in favor of the correctness of the judgment sought to be set aside. The right to challenge veniremen peremptorily is a right to reject. If a venireman who is unqualified because not impartial is tendered by the state, but does not serve as a juror, it does not follow that the defendant challenged him peremptorily, even though it does appear that the defendant exhausted his quota of peremptory challenges. To hold otherwise it would have to be presumed in aid of the contention that the judgment was erroneous; that the objectionable venireman was challenged by the defendant, who was thereby wrongfully obliged to use a peremptory challenge.
But that presumption cannot be invoked. The error, if any exists rendering the judgment bad, consists not in overruling the challenge for cause, but in overruling the challenge for cause and permitting the juror to serve, or forcing the defendant to use one of his peremptory challenges, and the exhausting by him of his full quota of challenges when the jury is selected. Unless that is the situation, no injury resulted from the court's ruling. There was no harmful error.
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