Opinion
No. 29253.
April 6, 1931.
CRIMINAL LAW. Evidence showing juror before trial expressed positive and definite opinion of guilt of accused of offense charged held to warrant new trial.
Witnesses, who testified on motion for a new trial that juror expressed positive and definite opinion of guilt of accused, were neighbors and friends of juror, and in fact one of them was related. Such witnesses had no personal interest in the accused and were barely acquainted with him. Juror's testimony when examined was not positive and not convincing.
APPEAL from circuit court of Union county; HON. T.E. PEGRAM, Judge.
Fred B. Smith, of Ripley, for appellant.
It has been said that anything which is a good cause of challenge is a good cause for a new trial, if not known to the parties or his counsel before verdict.
16 C.J., page 1152.
Where a juror has prejudged defendant's guilt before hearing the sworn testimony, it cannot be said that defendant has had a fair trial before an impartial jury, and a new trial will be granted. Usually this ground is established by proof of prior statements of the juror concerning the case, bias being deemed to be established where the juror's declaration, on his voir dire, that he was not biased, is negatived by proof of prior statements of such character as to show a fixed opinion on the part of the juror, and which, if unknown to defendant, until after verdict, will call for a new trial.
16 C.J., page 1154.
A verdict of a jury embracing one disqualified member cannot be allowed to stand.
Section 26, Constitution of 1890; Jeffries v. State, 74 Miss. 676; Martin v. State, 98 Miss. 682; Klyce v. State, 79 Miss. 657.
The defendant is entitled to a fair and impartial jury, however guilty he may be; and no other tribunal has the power to determine guilt. If there has not been a trial by an impartial jury, this court must reverse, even though the evidence so overwhelmingly shows the defendant's guilt that such a jury could not have honestly reached any other conclusion.
Jones v. State, 97 Miss. 270.
It is the duty of the court to reverse the lower court in its finding of fact whenever it is satisfied that the lower court has erred in holding a juror competent, when this court is clearly of the opinion that he was not a competent juror.
Dennis v. State, 91 Miss. 227.
The mere fact that a juror makes oath that he was impartial as provided by section 2685 of the Code of 1906, section 2331 of Hemingway's Code of 1927, is not conclusive, and will not prevent a reversal if it is shown that the juror had formed and expressed an opinion, indicating prejudice or bias.
Darby v. State, 91 So. 37; Shepprie v. State, 79 Miss. 746; Whitten v. State, 95 Miss. 413; Mabry v. State, 71 Miss. 721. Hubert D. Stephens, of New Albany, for appellant.
If witnesses testify to a juror's prejudice and it does not affirmatively appear that the witnesses proving the prejudice were disbelieved by the circuit judge, a new trial will be granted.
Sam v. State, 31 Miss. 480.
A reversal has been granted because of the disqualifications of a juror in numerous cases.
Jones v. State, 52 So. 792; Jeffries v. State, 74 Miss. 676; Ellerbe v. State, 75 Miss. 531; Shepprie v. State, 79 Miss. 682; Dennis v. State, 91 Miss. 221.
Albert L. Ingle, and Hubert D. Stephens, of New Albany, for appellant.
The Constitution guarantees a person charged with a crime a trial by an impartial jury.
Jeffries v. State, 74 Miss. 675; Shepprie v. State, 79 Miss. 740; Jones v. State, 97 Miss. 269.
Edwin R. Holmes, Assistant Attorney-General, for the state.
Where the testimony introduced on the hearing of the motion for a new trial was conflicting, it is the duty of the trial judge to pass on conflicting testimony, and the action of the trial judge in passing on such testimony is binding on the court here.
Harris v. State, 135 Miss. 171, 99 So. 754.
Argued orally by Hubert D. Stephens and Fred B. Smith, for appellant, and by Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
Three witnesses testified positively that the juror Sloan had, before the trial, expressed a positive and definite opinion of the guilt of the accused, and had used strong language in thus expressing his opinion. These witnesses were near neighbors and friends of the said juror, one of them being his first cousin. They had no personal interest in the accused, and were barely acquainted with him. These witnesses appear to be men of character, and since all the circumstances would indicate that they would have preferred to favor the juror rather than the accused, the testimony on this point, on the motion for a new trial, was of such strength and convincing force, as compared with several equivocal responses made by the juror when examined under the motion, that the sustaining of the motion on the facts would seem inevitable. Brown v. State, 57 Miss. 424; Jeffries v. State, 74 Miss. 675, 21 So. 526; Klyce v. State, 79 Miss. 652, 31 So. 339; Shepprie v. State, 79 Miss. 740, 31 So. 416; Dennis v. State, 91 Miss. 221, 44 So. 825; Jones v. State, 97 Miss. 270, 52 So. 791; Martin v. State, 98 Miss. 682, 54 So. 148; Darby v. State, 128 Miss. 438, 91 So. 37. Compare Green v. State, 72 Miss. 522, 17 So. 381; Schrader v. State, 84 Miss. 593, 36 So. 385; Harris v. State, 135 Miss. 171, 99 So. 754.
But the court, in overruling the motion for a new trial, dictated into the record the following statement: "I don't think under the state of this proof that I am called upon to pass on the truth and veracity of any witness. I don't think the proof produced is sufficient to warrant the court in sustaining this motion; therefore the motion is overruled." We apply to this action of the court the principle of adjudication announced in the Jeffries case, 74 Miss. 675, 677, 21 So. 526, namely, we must assume that the trial court must have come to the conclusion that, taking the facts as stated by the witnesses introduced in support of the motion to be true, they were not sufficient to disturb the verdict; and we must consider the case here as in that attitude. So considered, and taking the facts hereinbefore stated as true, it follows clearly that the court was in error in overruling the motion for a new trial. The constitutional guaranty of an impartial jury is enforced with strictness in this state, as is disclosed by an examination of the many cases hereinabove cited — and this without regard to the facts of the case on the merits. There is nothing new that we may add to the consistent and forceful expressions of this court on this subject for a long course of years; so that we have only to follow previous decisions and order a new trial.
Reversed and remanded.