State v. Swafford , 1915 Wash. LEXIS 1168 ( 1915 )

Main, J.

(dissenting)—I think this case falls within the rule of the cases of State v. Underwood, 35 Wash. 558, 77 Pac. 863, and State v. Moretti, 66 Wash. 537, 120 Pac. 102, and does not come within the rule of the case of Heasley v. Nichols, 38 Wash. 485, 80 Pac. 769. The question is not whether the juror had previously made statements based upon rumors which were derogatory to the appellant, but whether the juror was biased or prejudiced against the appellant.

This case is distinguishable from the Heasley case in this: In that case the juror, upon his voir dire, concealed the fact of his bias and prejudice, and by reason of his misrepresentations was taken and permitted to sit upon the jury. In this case, the juror Jasper son did not conceal anything upon his examination upon the voir dire, but stated positively that he was able to, and would, give the appellant a fair and impartial trial. In addition to this, the affidavits showing bias and prejudice in the Heasley case were not denied. In this case, Jasperson, while not unequivocally denying that he made the statement charged to him, did deny that he had any memory of making such a statement. Obviously, if he had no memory of the statement, it cannot well be said that he was biased and prejudiced against the defendant by reason of having made it, if he did make it. Whatever was said was based upon rumors prevalent at the time the crime is alleged to have been committed.

It does not seem to me that the verdict of a jury should be overturned because one of the jurors may have previously made a statement based upon rumors, which statement, at the time he qualified as a juror, had disappeared from his memory. As already stated, the juror having no memory of the previous statement charged to him, his verdict could not be influenced thereby; and it ought not to be sufficient to operate to impeach the verdict.

For the reasons stated, I am unable to concur in the majority opinion, and therefore dissent.