State v. Rowe ( 1982 )

Clinton, J.,

dissenting in part and concurring in the result.

I respectfully dissent from the portion of the opinion which holds that the peremptory challenge of the juror Mrs. Murdoch was not error. It is the rule that a juror who cannot subordinate his personal views on an issue of law and obey the law in deciding the case must be excused for cause. State v. Kirby, 185 Neb. 240, 175 N.W.2d 87 (1970). The answer of the juror to counsel’s question was rather clear-cut. The court should not have attempted to rehabilitate the juror. See Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). The court erred in not sustaining the challenge.

However, since the juror did not serve, the question becomes whether or not the defendant was prejudiced by the necessity of using one of his peremptory challenges to remove the juror. In some jurisdictions the need to use a peremptory challenge to disqualify a juror who should have been removed for cause is presumed to constitute prejudical error. However, that is not the law in this jurisdiction. If a trial court erroneously fails to sustain the proper challenge of a juror for cause, a reversal will not result unless the record shows that the error brought injury to the accused. Bufford v. State, 148 Neb. 38, 26 N.W.2d 383 (1947). This case overruled earlier Nebraska cases holding otherwise. The record in this case does not show the defendant was prejudiced by having to use the peremptory challenge.

I concur in the remainder of the opinion and, therefore, concur in the result.