State v. Musser

I concur in that part of the opinion upholding the information and declaring that an agreement to counsel, advise and urge other persons to practice polygamy is an agreement within the scope of the conspiracy statute. I concur in the holding that the evidence is insufficient to sustain a verdict against any defendant other than the 20 held by the prevailing opinion. I agree that as to Juanita Barlow and Jean Barlow Darger the sentence and conviction must be set aside for the reasons stated in the opinion.

Now I note the matters in which I must dissent. I think the questions asked Helen Smith as to what was said to her by her husband relative to Barlow and Musser were in the nature of communications which are confidential under the provisions of Sec. 104-49-3 (1), U.C.A. 1943. However, that does not avail the defendants because: first, no objections was made on the grounds of privileged communication; second, such objection is only available to the other spouse; and third, Heber C. Smith, the husband, is not one of the 20 defendants as to whom we hold there is evidence enough to go to the jury.

I think the opinion is in error on the question involving the competency of certain jurors. To my mind the record compels the conclusion that the trial court was in error in denying the challenge of defendants to such jurors. I fear the effect of the holding of the opinion will be to render any talesman competent to sit as a juror if he says he will try the case fairly and impartially even though he has a fixed and determined opinion of defendant's guilt or of his innocence as unmovable as Gibralter. During the examination of talesman as to his qualifications to sit as a juor, when the talesman stated that he had formed an opinion as to the merits of the case, the court asked:

"Is it such an opinion that it would not yield to the facts presented here in the court room before you for your consideration?"

The talesman answered:

"It would take evidence to change my opinion."

The court then asked:

"The opinion you now have — could the opinion you now have be removed by evidence you heard in this court, and altered and changed?"

And the answer was:

"Yes, by evidence it could."

The challenge to the juror was denied.

Another talesman who had formed an opinion on the merits stated that

"it could be changed; as the case went on, it could be changed."

Challenge to such juror was also denied. At least three jurors were of this type. It seems elemental to the writer that a talesman who has an opinion on the question to be decided by the jury, which opinion requires evidence to change or remove, is ipso facto disqualified as a juror. Of course, jurors are not required to be blank minds, but they should be men with free and open minds; men who can enter the jury box at the beginning of the evidence utterly disregarding and oblivious to anything they may have heard or read, or any opinions or impressions they have formed. The question is not: Can your opinion be changed, but can you utterly disregard your opinion? It is not as to whether the opinion is of such fixity that it cannot be changed by evidence, but is it of such fixity that you cannot disregard it without any evidence? As far as such juror is concerned the party litigant comes to the batter's box with two strikes charged against him. It is small consolation to say:

"If you knock a home run on the first ball pitched, the handicap of two strikes charged against you before you came to bat didn't hurt you."

Who would contend that in a championship basketball game it is fair to give one team, as the game opens, 10 free throws at the basket, saying to the other team:

"If you can score enough field baskets more than your opponents to offset the 10 free throws, why you win anyway so you can't complain"?

The rule as laid down by the overwhelming weight of authority, and as repeatedly declared in this jurisdiction is, a talesman is not disqualified as a juror because he has formed or expressed an opinion as to the guilt or innocence of the accused if such opinion is one that the juror can and will completely lay aside and disregard so he can try the case fairly and impartially upon the evidence submitted in open court like he would if he had heard nothing of the case or formed no opinion whatever. In People v. Hopt, 4 Utah 247, 9 P. 407;Hopt v. People, 120 U.S. 430, 7 S. Ct. 614, 616, 30 L. Ed. 708, the question was raised as to a denial of a challenge of a juror for implied bias. The Utah court disposed of the matter on the ground that when the jury was sworn the defendant had three unused peremptory challenges and so could not complain. The United States Supreme Court affirmed on the same ground. It should be borne in mind that both courts point out that the juror, Abbott, testified that while he had long before formed an opinion based upon what he read in the newspapers "he could go into the jury-box and sit as if he had never heard of the case" and that unless "what he had heard turned out to be the facts in the case" he had no opinion, and that "he could sit on the jury and determine the case without reference to anything he had heard." In Thiede v. Utah, 159 U.S. 510, 16 S. Ct. 62, 64,40 L. Ed. 237, the court disposes of the question thus:

"These jurors testified substantially that at the time of the homicide they had read accounts thereof in the newspaper, and that some impression had been formed in their minds from such reading, but each stated that he could lay aside any such impression, and could try the case fairly and impartially upon the evidence presented."

In State v. Haworth, 24 Utah 398, 68 P. 155, four of the challenged jurors had formed no opinion as to the guilt or innocence of the accused. It did appear they had formed an opinion that deceased had been murdered. (A point on which there was no dispute). One juror stated that from what he had read he had formed an opinion or impression as to the guilt or innocence of the accused, but that he could weigh the evidenceindependently of what he had read and heard and would not be influenced by such matters or opinions formed therefrom. These jurors were held not disqualified. They all come with the rule for which the writer is contending.

"A person who has formed an opinion by conversation with witnesses is, under Neb. Crim. Code, Sec. 468, incompetent to sit as a juror, notwithstanding he may swear that he can render a fair and impartial verdict." Cowan v. State, 22 Neb. 519,35 N.W. 405.

"A juror is not disqualified because he has formed an opinion of greater or less strength from what he has read in newspapers, if he testifies that he can render a verdict according to the evidence, uninfluenced by previous opinions." Rizzolo v.Com., 126 Pa. 54, 17 A. 520; West v. State, 79 Ga. 773,4 S.E. 325; Garlitz v. State, 71 Md. 293, 18 A. 39, 4 L.R.A. 601; People v. Gage, 62 Mich. 271, 28 N.W. 835, 4 Am. St. Rep. 854.

"A juror having an opinion in a case, and whose declaration that he could render an imparial verdict is qualified by a doubt, is incompetent under N.Y. Code Crim. Proc., Sec. 376." People v. McQuade, 110 N.Y. 284, 18 N.E. 156, 1 L.R.A. 273.

"A juror stating that he is prejudiced in defendant's favor, but that he can find a verdict upon the evidence alone, is properly rejected on a challenge for cause." Giebel v. State, 28 Tex. App. 151[28 Tex. Crim. 151], 12 S.W. 591.

"The statement of a juror on cross-examinatin, that he thinks he can try the case fairly and impartially and render an impartial verdict from the evidence, without being biased by his previously formed opinion, although it will take evidence to remove it, renders his rejection a matter within the discretion of the trial judge." Young v. Johnson, 123 N.Y. 226,25 N.E. 363, affirming 46 Hun. 164.

"The opinion which renders a juror incompetent must be such as would influence his judgment." Spangler v. Kite,47 Mo. App. 230.

"A juror called in a murder case is not incompetent because he heard talk about the case at the time of the offense, and may then have had some opinion, where he stated that he has noopinion at the time of the trial, stands impartial, and can give the prisoner a fair trial.' Lyles v. Com., 88 Va. 396,13 S.E. 802. (Italics ours.)

"One who has formed an opinion which it will require evidence to remove is disqualified for actual bias as a juror in a murder trial, although he states that he will try the case on the evidence and the law." State v. Coella, 3 Wash. 99, 28 P. 28; contra, Com. v. McMillan, 144 Pa. 610, 22 A. 1029.

"A juror who has formed and expressed a positive opinion of the guilt of a prisoner, and of certain specific and material facts, although it is based solely on newspaper accounts, is disqualified, even if he declares that he can render a fair and impartial verdict upon the evidence alone." Coughlin v.People, 144 Ill. 140, 33 N.E. 1, 19 L.R.A. 57. (Above quotations 40 L.Ed. pages 238, 239.)

We quote from the syllabus in Scribner v. State,3 Okla. Crim. 601, 108 P. 422, 423, 35 L.R.A., N.S., 985:

"The opinion necessary to disqualify a juror must be one based on what purports to be the facts and one that will combat the evidence.

"The trial court is not limited to the answers made by the juror, but must be satisfied from all the circumstances as well as the examination that the juror is not prejudiced against the accused.

"Where the juror says he has an opinion, the accused should be given an opportunity to examine him fully as to the extent of his opinion."

In the concurring opinion of Mr. Presiding Judge Furman, we read:

"When a juror states that he had an opinion as to the guilt of a defendant, he is not made competent to sit in the case merely because he may state that he can and will lay this opinion aside if taken on the jury, and give the defendant a fair and impartial trial, and be governed alone in making up his verdict by the testimony of the witnesses and the charge of the court. The juror is not the judge of his own competency, of his own impartiality, and of his own freedom from prejudice. No statute can clothe him with such judicial discretion and power. * * * It is the judge and not the juror who is charged with the duty of passing upon the competency of the juror, and in the discharge of this duty the judge may have recourse to any means of information within his power. In fact he should carefully investigate every source which would be calculated to throw any light upon the competency of a juror, and if the judge is not entirely satisfied of the competency of the juror, he should be excused. * * * Johnson v.State, 1 Okla. Cr. [321], 348, 97 P. [1059], 1070 [18 Ann. Cas. 300].

"* * * The court erred in not permitting this question to be answered. While it is true that the court would not be bound by the answers of the juror, yet, when it is disclosed that a juror has an opinion, in all fairness, the court should permit the most searching cross-examination of the juror as to the origin, extent, and probable effect of such opinion. * * * But it may be said that the defendant is guilty, and that therefore it is immaterial as to whether the law was complied with. Such a statement as this is the first step toward lynch law, and if recognized by this court, would wipe out and destroy every constitutional right, and would establish a precedent which, if followed, would result in arbitrary punishment in the name of the law; * * *."

The question as to the juror's qualification is not if his opinion will yield to evidence but, can he lay it aside and disregard it so as to give the evidence its proper weight on the question: Is guilt proved? without wasting part of its strength and force in overcoming preconceived opinions on that matter? In other words, not can the opinion be overcome by evidence, but can and will the juror disregard such opinion and weigh the evidence fairly and impartially? I think the trial court erred in turning down the suggestion and request of defense that the state of mind of these jurors, and the fixity of their opinion be further explored before they be accepted as jurors. On the record as it stands, I think these jurors were disqualified and incompetent to sit as jurors, and the cause should be reversed.

There are two other matters in the record I think were error but since no exception was taken to them below, they need not be discussed.

PRATT, Justice, not participating.