Osiander v. Commonwealth

A person called as a juror in a criminal case, and examined as to his indiffereney on his voire dire, declared, he had heard reports concerning the case in the country, and a state of the circumstances from one of the witnesses, and had formed a hypothetical opinion, but he believed it would not influence his mind as a juror; he believed the account he had heard of the case at the time he heard it, (and he did not now express any doubt 'of its truth); if the evidence at the trial should correspond with the account he had heard, his former opinion would remain, but if it should be different, he felt satisfied he should be' able to decide the cause, without being influenced by what he had before heard, and with- ■ out prejudice: and it did not appear, that the witness had ever before expressed the opinion he had so formed—Heed , such preconceived hypothetical opinion did not constitute good cause of challenge to the juror. To constitute good cause of challenge to a juror, on the ground of preconceived opinion of the case formed by him, it must appear, that such preconceived opinion was a decided one. Quasre, if a person called as a juror has formed a decided opinion of the case out of doors, it is necessary that he should have also expressed such opinion, to constitute it good cause of challenge to him as a juror ?

Osiander was indicted for grand larceny in the circuit court of Cabell, tried and convicted, and sentenced to two years imprisonment in the penitentiary. In impanneling the jury, one Love was called as a juror, and, at the prisoner’s instance, was examined on oath, “ whether he had formed and expressed an opinion as to the guilt or innocence of the prisoner in relation to the charge alleged in the indictment ?” On which examination, Love said, “ he had heard the reports of the country, and thought he had heard one of the witnesses state the circumstances, and he had formed a hypothetical opinion on what he had heard, but believed it would not influence his mind as a trier of the cause: if the evidence should correspond with the representations he had heard, his former opinion would remain ; but if the proof should be different, he felt satisfied he should be able to decide the case without any influence from what he had before heard on the subject.” In answer to an interrogatory of the prisoner’s counsel, he further said, “ that he had no doubt of the truth of the reports at the time of hearing the same (and he expressed no doubt on this ex-animation), and that if the same facts should be satisfactorily proved on the trial, he would come to the same conclusion ; but that, if the proof should change or alter the case from the reports he had heard of it, he felt satisfied—he had no doubt—that he would be able to decide the case according to the evidence, without being in any degree influenced by the reports he had heard, or the impression which they had made on his mind.” Whereupon the prisoner challenged the juror for cause: namely, “on the ground that he had formed an opinion, as disclosed upon his examinationbut the court being of opinion that there was no legal objection to the juror, overruled the challenge j to which opinion the prisoner filed a bill of exceptions. And now be presented a petition to this court, complaining that the circuit court erred in overruling the prisoner’s challenge to Love, for cause, and praying a writ of error to the judgement.