State v. Otto , 61 Kan. 58 ( 1899 )

The opinion of the court was delivered by

Smith, J.:

At the trial it was claimed by the state that a large part, if not all, of the cattle shipped by the appellant from Englewood to Kansas City, con-sis ting of one car-load, were stolen. Several witnesses testified in support of this contention. Bearing on this, the court gave an instruction to the jury that the defendant could not be convicted of larceny of any other cattle than the ones mentioned in the information. The prosecution proceeded on the theory of a conspiracy between the defendant and his accomplice, Theodore Wolfley, to steal twenty or more head of cattle included in this shipment and sell them in the market at Kansas City. While both were accused of the theft but one was prosecuted.

It will be noticed from the statement that the juror Dugan testified that he had an opinion that the defendant took stolen cattle to market; that he had heard people talk about it who claimed to know the facts; that from the opinion he had formed and the expressions he heard from men regarding the preliminary examination he would retain that opinion until there was evidence adduced to change it; that it would take evidence to remove the opinion that the defendant had taken cattle which were stolen to market; and that this opinion .was formed in a conversation about the case against the defendant. The juror also testified that there were some points concerning which he had an impression that it would require evidence to remove. It was a material fact in the case, toward which much of the testimony was directed, whether the defendant took stolen cattle to market. Having such an opinion on this branch of the inquiry, the juror was already won over to the side of the state on a matter largely decisive of the defendant’s guilt.

We cannot say that the juror had not formed an opinion on an issue, or a material fact to be tried. The juror no doubt thought he could render a fair and impartial verdict. What he had heard did not, in his estimation, bias his judgment nor make his mind' more receptive of testimony tending toward conviction than if he had nothing of the matters in issue. Communicated information of facts concerning charges against a man accused of crime frequently produces in the person receiving it a resulting condition of mind amounting to a strong and deep impression, for the reason that criminal acts are exceptional and create comment in a community. Coming unexpectedly, and being out of the ordinary run of events, a report or rumor concerning them fixes the attention and, provoking discussion, often results in the formation and expression of an opinion by the hearer. Courts should therefore, when a juror testifies to having an impression, permit a liberal inquiry to determine whether that impression is so fixed and positive in character, as to amount to an opinion.

It is the duty of the court, imposed both by statute and by the principles of natural justice, to stand as a vigilant guard over the jury-box, to the end that bias, prejudice and preconceived opinion do not enter. It is better that the first impression of a case come from the testimony of the witnesses after the jurors are sworn to try the cause. While there is recognized in the law a distinction between an impression and an opinion, yet there is so little difference between the two, and the step so short from one to the other, that courts should be certain that a juror’s mind which is possessed of the one has received it with pressure too weak to break over the dividing line.

We extract from our own reports the following:

“Whenever it appears from the statements of a juror, when being examined touching his qualifications, that his mind is in such condition respecting the issue or any material fact to be proved at the trial, that it will require evidence to remove some opinion or impression that has become fixed, relating to such issue or material fact, it cannot be said that he is an impartial juror.” ( The State v. Beatty, 45 Kan. 492, 502, 25 Pac. 899.)

“But it may be said that the opinion of the juror in the present case was founded merely upon rumor. Now there is nothing in the constitution, or in the statutes, providing, or even intimating, that a juror who has formed an opinion upon rumor only may be competent to serve in the case. It may also be said, in the present case, that the juror stated upon his voir dire that he had no bias or prejudice against the defendant, and would be governed entirely by the evidence in the case in making up his verdict, and that he believed that he could try the case impartially. The juror was probably sincere in stating this. . . .

“The fact, in the present case, that the juror had an opinion with respect to the guilt or innocence of the defendant, and that he had no doubt as to the correctness of his opinion, and that his opinion would remain until it should be removed by evidence, was sufficient to render the juror incompetent to serve in the case.” ( The State v. Miller, 29 Kan. 43, 47.)

“ It is well settled that those who come to the trial of a cause with opinions of a fixed and positive character as to the guilt of a defendant are not qualified jurors, although they may state that they believe they could give the accused a fair and impartial trial.” (The State v. Start, 60 Kan. 256, 258, 56 Pac. 15.)

“ But where, as in this case, the jurors hold strong and deep impressions which amount to opinions, and which are of a fixed and positive character, such as will require evidence to change, it is an abuse of discretion to admit them as jurors.” (The State v. Snodgrass, 52 Kan. 174, 178, 34 Pac. 750.)

“He (the juror) insisted throughout his examination that he entertained an opinion, and not a mere impression. It was not based on newspaper account alone, or mere rumor, but he had learned the facts from those who assumed to know them, and on these had formed and expressed an opinion in regard to the guilt of the defendant. It is true he stated that he believed that he could give the defendant a fair and impartial trial, but a person holding an opinion formed in such a way and of such a fixed and positive character does not possess the qualifications which the law requires.” (The State v. Beuerman, 59 Kan. 586, 588, 53 Pac. 874.)

The juror being disqualified to sit, the judgment of the court below will be reversed, and the cause remanded for a new trial.