Sullivan v. Padrosa , 1905 Ga. LEXIS 202 ( 1905 )

Cobb, J.

1, 2. Trial by jury necessarily means trial by an impartial jury. The constitution in terms declares that the jury in criminal cases shall be impartial. Civil Code, § 5702. Under the English practice, when the competency of a juror in a criminal case was challenged; the court placed the juror upon his- voir dire, and propounded, or caused to be propounded to him, such questions as would demonstrate whether he was partial or imparrial in the particular case. This was the practice in Georgia prior to 1856. In that year the act now embraced in the Penal Code, §975, was passed, which provided that certain questions should be asked in felony cases to determine a juror’s competency in the particular case. The juror’s competency can be generally determined by his answers to the statutory questions •; but it has been held that it is proper for the court to explain to the jury the full intent and meaning of these questions, in order that the answers by the juror may be intelligent; and while the settled rule seems to be that neither the State nor the accused has a right to ask any additional questions, the court may in its discretion properly explain to the juror the meaning of the statutory questions. Pines v. State, 21 Ga. 221 (2); Dumas v. State, 65 Ga. 471 (3); Fogarty v. State, 80 Ga. 450 (9); Woolfolk v. State, 85 Ga. 69 (9). In misdemeanor and civil cases there is no statutory provision regulating the method to be adopted by the court in determining the competency of the juror; but the settled rule is that either party has a right to request that the jurors be put upon their voir dire in order that their competency may be determined. When such request is made it is the duty of the court to propound, or cause to be propounded, such questions as will test the competency of the jurors to pass upon the issues in the case. The questions to be asked in each case are to be determined by the court, and what shall be the character and number of the questions is left largely to the discretion of the judge, who must keep in mind all the time the object to be attained, that is the determination of whether the minds of the jurors are in such a condition that they can pass fairly and intelligently upon the issues to be submitted to them. See Justices v. Plank Co., 15 Ga. 39, 41; Howell v. Howell, 59 Ga. 145; Holton v. Hendley, 75 Ga. 847 (2); Haney v. Hightower Institute, 113 Ga. 289, 293; Penal Code, § 855. While counsel may suggest questions to be asked, they have no right to insist that questions as framed by them shall be adopted by the court. In this case counsel did not ask that the jurors be put upon their voir "dire and each be interrogated as to his competency, but merely requested that three questions as framed by him should be submitted to each juror. The court might with propriety have adopted two of these questions, but the third was not a proper question tó be propounded to tbe jurors. If the jurors had been put upon their voir dire, of course it should have been explained to them what was the general character of the case, who were the parties, and then they should have been required to answer whether they stood impartial between these parties and their minds were free from bias or prejudice .for or against either. The third question which counsel sought to ask did not seek to elicit information as to bias or prejudice against the negro plaintiff or in favor of the white defendant in the particular case, but it went into an inquiry as to whether the plaintiff' was conscious of what is called the race prejudice of the white man against the negro. To allow such questions in regard to antipathies and prejudices which a particular juror might have growing out of the fact that he belonged to a different race from that of one of the parties or the peculiarities of life, habits, or thought of such parties, or other matters in which he was different from the ordinary juror, would lead to almost endless investigation in every case where a jury was sought to be empaneled. If a juror is conscious of the fact that his prejudice against the negro race is such that he can not get his consent, even when acting under the sanction of an oath, to do justice to the negro, he is an incompetent juror, and would be compelled, if an honest man, to answer in the negative the first two questions proposed to be propounded in this case. There being no general challenge of the jurors on the panel for partiality, but the request being simply that three questions submitted to the court should be propounded to the jurors, and one of them being improper, the judgment will not be reversed for a failure, to comply with the request of counsel to submit such questions to the jury.

2. Complaint is made that counsel for the defendant after the evidence was closed, in open court in the hearing, of the jury, made a proposition to submit the case to the jury without argument. • Propositions to submit the case without argument, to have the jury inspect the premises, and others which relate to the conduct of the jury in the ease, which parties have a right to accept or reject, should never be made in the hearing of the jury; and the practice of submitting such propositions in open court in the presence of the jury can not be too strongly condemned. But where no ruling of the court is invoked in reference to such matters, such conduct will not be a ground for reversing a judgment refusing a new trial. See O’Dell v. State, 120 Ga. 152 (5).

4. The evidence amply warranted the verdict, and no sufficient reason has been shown for reversing the judgment.

Judgment affirmed.

-All the Justices concur.