State v. Snodgrass

1. Cbiminal Case — Jurors, When Competent, When not. Light impressions, obtained from vague rumors or the reading of abbreviated and partial newspaper reports, are not sufficient to render obnoxious to challenge a juror whose mind is open to a fair consideration of the testimony; but where persons called to try a cause hold strong and deep impressions which amount to opinions, and which are of a fixed and positive character, such as will require evidence to change, they should not be retained as jurors, although they may testify that they believe they can render an impartial verdict. 2. Disqualified Jueoes, Trial by. Errors in compelling a trial by disqualified jurors may be available without bringing up all of the evidence upon an appeal. 3. Appeal — Record, When Sufficient. When the defendant brings with the record so muoh of the proceedings as discloses that he has not been accorded a trial by a legally-constituted jury, he has shown affirmative error which entitles him to a reversal, unless something contained in the record shows the error to be unprejudicial.

Appeal from Hamilton District Court. JUNE 27, 1893, John Snodgrass was convicted of rape. He appeals. The opinion states the material facts. There was not a substantial compliance with the statutes in the selection of this jury, and the defendant in a criminal action has “the right to insist that there shall be a substantial compliance with the law.” And where there is a departure from the statutes in the selection of a jury, it is sufficient ground to quash the panel. The State v. Jenkins, 32 Kas. 479. The most palpable invasion of the defendant’s rights in the trial of this case occurs in the selection of a jury to sit in the trial. The record brought here shows that 18 of the jurors called into the box for examination were held by the court to be qualified. Six of these men were peremptorily challenged by the defendant, and the state waived all its peremptory challenges. Seven of these were challenged by the defendant for cause, which challenges were by the court overruled, and exceptions saved by the defendant. The defendant here insists,, as he did below on motion for a new trial, that the court erred in overruling each of said challenges. The rule for the exclusion of jurors upon a challenge for cause, as announced in The State v. Beatty, 45 Kas. 502, we think required the court to sustain the challenge of the defendant to each of these jurors. See, also, The State v. Miller, 29 Kas. 46; The State v.. Medliaott, 9 id. 257. Defendant relies largely upon the case of The State v. Beatty, 45 Kas. 492, and seems to assume that the commissioner’s opinion in that case establishes the doctrine, that if a juror says that he has an opinion which it would require evidence to remove, he is necessarily disqualified.. We do not so understand the effect of that decision. If such is actually-the effect of the decision, then it is clearly in conflict with the doctrine first announced by this court in The State v. Medli-eott, 9 Kas. 257, followed in numerous other cases, and expressly approved in the specially concurring opinion of Justice Brewer in The State v. Miller, 29 Kas. 48. Such a statement by a juror, standing alone and unexplained, would of course be good ground of challenge, but it may be so qualified as to become immaterial. A careful examination of the whole testimony of each juror will show that as a matter of fact he was a fair trier of the case. We submit that the test of a disqualifying opinion based upon the requiring of evidence to remove it is one easily capable of being overworked. Considered in the usual acceptation of the language — as understood by the average juror — the question asked of an existing opinion, “Would it require evidence to remove it?” is a meaningless form, admitting of but one answer, an affirmative. How is it possible for one to have-, an opinion that it would not take some evidence to remove? How can one be rid of an existing opinion or impression, however slight and inconsiderable it may be, except by receiving new information? Chief Justice Marshall, in the Aaron Burr case, quoted with approval by this court in The State v. Medlieott, 9 Kas. 279, describes the opinions which do not disqualify as “light impressions, which may be supposed to yield to testimony that may be offered.” Clearly, an impression or opinion that yields to testimony is one that it takes testimony to remove. See The State v. Barton, 8 Mo. App. 15; Ortwein v. Commonwealth, 76 Pa. St. 414; People v. Barker, 27 N. W. Rep. (Mich.) 539-541; Qarlitz v. The State, 18 Atl. Rep. (Md.) 39-41. In the following cases, the test of requiring “evidence to remove” the opinion is expressly repudiated: Ulrich v. People, 39 Mich. 245-248; The State v. Lawrence, 38 Iowa, 51 — 54; The State v. Saunders, 12 Pac. Rep. (Ore.) 441-443; Sneed v. The State, 1 S. W. Rep. (Ark.) 68-70; The State v. Cunningham, 12 id. (Mo.) 376, 377; Qarlitz v. The State, 18 Atl. Rep. (Md.) 39-41; Hall v. Commonwealth, 15 S. E. Rep. (Va.) 517, 518; Commonwealth v. MoMillan, 22 Atl. Rep. (Pa.) 1029, 1030; The State v. Dent, 7 So. Rep. (La.) 694-696; Sivar v. The State, 9 S. W. Rep. (Tex.) 552-554; English v. The State, 12 So. Rep. (Fla.) 689-693; The State v. Millain, 3 Nev. 409; The State v. Carson, 50 Ala. 134; People v. King, 27 Cal. 507; Wilson v. The State, 94 Ill. 299; Ogle v. The State, 33 Miss. 383; Gtietig v. The State, 66 Ind. 94. While several of the statutes under which these decisions were rendered differ from that of Kansas in the language used in defining the qualifications of a juror, the same purpose is apparent in all of them, namely, to secure such a jury as can give the evidence an impartial consideration. None of these statutes permits a man to sit on a jury if he has such an opinion as will affect his judgment, and no decision excludes a juror on account of his opinion except on the theory that it would affect his judgment. The question discussed in all these cases is, whether an opinion which requires evidence to remove it is one which will necessarily influence the judgment of the juror, and the reasoning is as pertinent here as elsewhere.