Temple v. State

DOYLE, P. J.

(after stating the facts as above). The first question to be noticed in this case arises upon the rulings of the court in impaneling the jury. It appears that the defendant had been convicted of forgery by the verdict of a jury, returned the day before the trial of this case commenced, and these jurors were called as trial jurors in this case. On their voir dire each of these jurors was asked this question:

“Q. After you hear Sheriff Ray testify in this case, if he testifies to the same state of facts that he testified to in the other case, would that influence you one way or thé other ip passing upon these same facts, if they were controverted? The County Attorney: Objected to. The Court: Objection sustained.”

Each of these jurors was in turn challenged for cause. In reply to questions by the court, these jprors said that they had formed no opinion of the guilt or innocence of the defendant. The court overruled the challenges for cause.

When the defendant had exercised all but one of his peremptory challenges, he requested the court to permit him to ask each member of the jury that served in the forgery case—

“if they have any fixed opinion as to whether or not the facts testified to by Mr. Ray in that other case are true. We desire to ask it for the purpose of basing a peremptory challenge. The Court: The request will be refused. Exercise your last challenge. Mr. Jones: We waive it.”

To each of these rulings the defendant then and there reserved exceptions.

The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual - or implied bias; also to enable the defendant to exercise intelligently his peremptory challenges. Our Procedure Criminal provides that, upon the trial of a challenge, the juror challenged may be examined as a witness to prove or disprove the challenge and is bound to answer every question pertinent to the inquiry. Section 5864, Rev. Laws 1910. This court has uniformly held that a liberal latitude should be given the defendant in the examining of jurors on their voir dire. Under the statute the defendant had the right to ascertain, by appropriate questions, the effect or influence, if any, the hearing of the testimony in the forgery case had upon the minds of these jurors, where such testimony might reasonably be expected to be introduced on the trial of this case. The questions were proper and pertinent for the purpose of ascertaining the competency of such jurors, and, assuming that the answers to the questions propounded would not have furnished sufficient grounds for a challenge for cause, the inquiry would then be proper and legitimate for the purpose of enabling the defendant to intelligently exercise his peremptory challenges. It follows that the court erred in sustaining the objections thereto. Likewise it was error to refuse permission to ask these jurors if they had formed any .impression or opinion as to whether or not the facts testified to by a witness in the forgery case, who would be a witness in this case, were true.

Upon a careful examination of the record, we have reached the conclusion that the jurors who had agreed to a verdict of guilty in the forgery case were not impartial jurors, under the meaning of our Constitution, and that it was a manifest abuse of discretion to overrule the challenges to said jurors on the ground of actual bias. Under the Constitution and laws of this state, it is a fundamental principle that fairness and impartiality are prerequisite qualifications in all jurors who are called upon to try a defendant in a criminal action, and no jury can in truth be said to be fair and impartial when this prin--ciple has been transgressed in selecting such jury.

Section 5858, Code of Crim. Proc. (Rev. Laws 1910), defines as one ground of« challenge to a juror—

“the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.”

It appears that the testimony in the former case involved certain controverted questions of fact in the trial of this case. The flight of the defendant as evidence of guilt and his ability to -read and write were in issue in both cases. It may be possible that a juror may be so peculiarly constituted that the rendition of his verdict in the one case would have no influence upon his action in the other, but this question must be disposed of upon the assumption that all jurors possess the characteristics common to ordinary men. A fair trial cannot be had except by an unbiased jury, and jurors who have passed upon the credibility of witnesses in the one case are disqualified and incompetent as jurors in a case where the same witnesses will be called to give the same testimony on an issue the same in both cases.

The competency of a juror is, under the statute, a question to be determined by the court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.

Section 5861, Code of Crim. Proe. (Rev. Laws 1910), provides:

“No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.”

The fact that these jurors stated on their voir dire that they had formed no opinion as to the guilt or innocence of the defendant, and that they could and would act impartially and fairly upon the matters to be submitted to them, was wholly immaterial. They could not be the judges of their own impartiality. They had received the evidence in the former case in the most solemn form and rendered a verdict. They had thus formed and expressed an opinion on some of the facts on which the defendant was to be tried, and were therefore disqualified. Our construction of the statute is that when the opinion is formed in this manner — that is, from hearing the facts of the case testified to — the examination of the juror must cease. He is incompetent.

It has been the uniform holding of this court that, whenever the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the accused.

The only testimony tending to connect the defendant Temple with the theft of the cattle was the testimony of John Morgan taken at the preliminary examination and read to the jury from the transcript.

Counsel for the defendant contend that the evidence to prove the predicate for the introduction of said trans-script, admitted over their objections, was incompetent and insufficient. Considering the competency of the testimony as it is met b.y the objections urged, it appears that Otis Morgan was, without showing his competency, permitted to testify that John Morgan was in Texas, and for this reason the court erred in overruling the objection thereto. It also appears that the return on a subpoena issued for John Morgan to the sheriff of Choctaw ’ county, made by O. P. Ray, sheriff of Atoka county, showing that the witness John Morgan could not be found in Choctaw county, was admitted. Obviously the court erred in overruling the defendant’s objection thereto. The subpoena had not been issued to the sheriff of Atoka county, and his return thereto was incompetent and inadmissible for any purpose. This was all the evidence introduced to prove a predicate, and was wholly incompetent and insufficient to prove the same. It was therefore prejudicial error to permit the transcript of the testimony of John Morgan to ■be read to the jury. Without the testimony of John Morgan the evidence is wholly insufficient to sustain a conviction, and, even if Morgan’s testimony was admissible, it is apparent that the evidence in the case is not that clear and convincing proof of the guilt of the defendant which would warrant his conviction. Its tendency, at most, is only calculated to create a suspicion that he was implicated in the theft of the cattle.

Defendants should not be convicted upon mere suspicions of guilt, or even strong probabilities of guilt. To warrant their conviction, the testimony, when all considered, should be clear and convincing, entirely satisfying the minds and consciences of the jury.

For the reasons stated, the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.