Hill v. State , 112 Miss. 260 ( 1916 )

Pottee, J.,

delivered the opinion of the court.

Joe Hill, the appellant in this case, was convicted of murder in the circuit court of Bolivar county, and sentenced to death, and prosecutes his appeal to this court.

On the voir dire examination of a venireman, Will Dillard, counsel for appellant propounded to said proposed juror the following question:

“Mr. Dillard, have you got any prejudice against the negro, as a negro, that would induce you to return a verdict on less or slighter evidence than you would return a verdict of guilty against a white man under the same circumstances ? ’ ’

Question of similar import were propounded to two other proposed jurors during the progress of the voir dire examination, and upon objection by counsel for the state the court ruled that the questions propounded were not competent. We think the trial judge erred in refusing to allow the jury to be examined with reference to race prejudice. The defendant on trial was a negro, and was being tried by white men. If for no other purpose than to exercise intelligently his right to peremptorily challenge jurors, the defendant had a right to inquire with reference to any bias or prejudice on account of race that might exist in the mind of any juror tendered to him. Under the circumstance in this case it was fatal error to deny the defendant this right.

As suggested by able counsel in his excellent brief, how else could appellant have guarded against race prejudice figuring in the determination of his trial than by subjecting the jurors on their voir dire examination to a line of questioning such as was presented to the court in this instance? It is only by asking questions of the nature of the above question that it is possible for counsel to elicit from a venireman whether or not there exists in his breast race prejudice, perhaps calculated to do the defendant irreparable injury in the trial of his case. In the case of Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am. St. Rep. 75, the supreme court of Florida says:

“It appears from the record that when the jury was heiug impaneled who tried the accused, and when the jurors were being tested upon the voir dire as to their competency, etc., the prisoner’s counsel propounded to J. F. Geiger and to other jurors the following question: 'Could you give the defendant, who is a negro, as fair and impartial a trial as you could a white man, and give him the same advantage and protection as you would a white man upon the same evidence?-’ which question the court below refused to allow to be propounded to the jurors upon their voir dire, and refused to allow counsel in the cause to propound any questions to the jurors upon the voir dire; the court itself insisting upon propounding all questions to the jurors touching their competency, and propounding only such questions to them as are in express terms provided for in section 10, p. 446, McClel. Dig. The refusal 'of the court' below to allow the question quoted above to be propounded to the jurors upon the voir dire is assigned as error, and will be considered first. We think the court erred in refusing to permit this question to be propounded to the jurors. Though the question is not in express terms provided for in the statute above cited, yet it was a pertinent, and, as we think, proper, question to teát fully the existence of bias or prejudice in the minds of the jurors. It sought to elicit a fact that was of the most vital import, to the defendant, and a fact, too, that if existent, was locked up entirely within the breasts of the jurors to whom the question was propounded, a knowledge of the existence of which could only be acquired by interrogating the juror himself” citing State v. Madoil, 12 Fla. 151; Pierce v. State, 13 N. H. 536; People v. Reyes, 5 Cal. 347; People v. Car Soy, 57 Cal. 102; People v. Christie, 2 Parker Cr. R. (N. Y.) 579; Jones v. State, 2 Blackf. (Ind.) 475; Lester v. State, 2 Tex. App. 432; Milan v. State, 24 Ark. 346.

Reversed and remanded.