Logan v. State

Simrall, J.,

delivered the opinion of the court.

Among the rights assured by sec. 7, art-. 1 of the constitution, to persons subjected to a criminal prosecution, “is a speedy and public trial by an impartial jury of the county where the offense was committed.”

An act of the legislature, therefore, which should direct a trial in secret, or which should encroach upon the qualifications of jurors in such wise as to. weaken or endanger their impartiality, would be an infringement of this constitutinal privilege.

The extent of the privilege is, that each member of the panel shall be indifferent and impartial, in that state of mind, unbiased *274 by a preopinion or prejudice wbicb would or might interfere with the just influence of the testimony on the mind.

It would not, therefore, be a matter of materialty from which source or by what influences the mind was wrought upon; if it was in that temper and disposition which biased or prejudiced it, the juror would not be impartial.

The privilege of the accused is, that impartiality shall characterize the panel. The mind is so constituted that every thing communicated through the medium of the senses and the association of ideas in reflection make an impression. These impressions vary in intensity and permanency as the mind was brought in closer or more remote contact with the scene or the narrative.

What is seen, or heard, or felt, is more vivid than a description or narrative by another. As the source of information is more remote from the immediate witnesses of transaction, the memory is less retentive, and the influence upon the mind less positive. The law avails of these experiences in determining upon the mental state of a juror.

If he was a witness of the transaction under investigation, necessarily some opinion must have been formed of the conduct of actors which either accuses or excuses them. If he has attended a former trial and heard the witnesses, necessarily an impression was made upon his mind. So if he has heard persons in whom he has confidence detail the circumstances, some bias naturally is created. Nor does it at all depend upon the integrity and moral honesty of. the juror, as to the existence of the bias. Nor again, is it possible to know how much or how little it may contribute to the assent to the verdict.

The privilege is, an “impartial jury of the county.” But it would not do to refine too much and fix the standard of qualification so high, as in many instances, to be unattainable. The telegraph and the newspaper have been so multplied, and as we know, are so eager to gather and spread “ news,” that the knowledge of crime is communicated much more extensively *275 than formerly, and that, too, among the most intelligent classes— the fittest material for the jury. _

In many communities, especially the larger towns and cities, this is more especially the fact. To hold, therefore, that a juror who had received a vague, evanescent impression from a newspaper or rumor, but who did not imbibe such an impression as engendered an opinion or bias, who had a consciousness of freedom from prejudice, and of ability to form a verdict according to testimony, was incompetent, would be to press the point to an unreasonable length. The very question came into judgment in Lee’s ease, 45 Miss., 118, 119 . There the juror “had formed an opinion from rumor, but said that it would not require testimony to remove it.” It is very difficult by words to define accurately the “state” of the mind, so subtle are its operations. That juror had derived an impression or opinion from what he had heard floating as gossip or rumor, but it did not so fix itself upon the mind as to stand in the way of a lair investigation and an unbiased weighing and consideration of the testimony. Such was also the case of Sam v. The State, 13 S. & M., 194 , quoted with approval in the former case.

Impartiality is the right of the accused and the aim oí the law. If the juror has made up a decided opinion, whether from personal knowledge, the statements of witnesses, or from rumor, he is disqualified. Neely’s case 13 Ill., 685 . For the disqualification depends more on the nature and strength of the opinion than upon its source or origin. Boon's case, 1 Kelly (Gra.), 631; Banger’s case, 14 La. Ann., 461 .

The deduction from the cases in this court is, that although a rule of universal application is hard to be defined, this much seems to rest upon authority.

1. If the mind of the juror is so far prejudiced as to require testimony to annul a preopinion, derived from whatever source or origin, the juror is incompetent

2. If the opinion has been engendered from personal knowl *276 edge from hearing the witnesses on a former trial, although the juror may disclaim that it would influence his verdict, and claim that he was unbiased and free to be governed by the testimony on the trial, such person is not indifferent.

3. If, however, the opinion is formed from rumor, and upon investigation, shall be shown not to be fixed, so as to create a bias or prejudice, which ;it requires testimony to remove or overcome, such person is a competent juror. Sam’s case, 13 S. & M., 189 ; Alfred’s case, 37 Miss. Rep., 296’; Ogle’s case, 33 Miss., 883 ; Lewis’ case, 9 S. & M., 118 ; Nelm’s case, 13 S. & M., 500 ; Cotton’s case, 31 Miss., 509 ; King’s case, 5 How., 734 .

Let us test the fitness of R. S. Maxey, as a juror. On his voir dire examination, Maxey responded to a question put by the district attorney, that he had formed an opinion as to the guilt or innocence of the accused. He further answered that the opinion had been formed by talking with the witnesses. On further interrogation, he said, he thought he could decide the case according to the evidence adduced on the trial. The juror further stated that his mind was as free to act as water, without regard to the opinion formed. The counsel for the accused proposed to ask the juror if it would not take evidence to remove the bias he had against the prisoner, which question the court would not permitió be asked, and refused to permit any other interrogatories to be put by the defendant’s counsel; but decided that the juror was competent, and he was accordingly sworn.'

The question propounded on the cross examination was relevant and pertinent ;• and was well calculated to elucidate the strength of the juror’s opinion. If it was of such force as to require testimony to remove it, then upon all the authorities he was disqualified. But the authorities go further. If the opinion has been engendered by hearing a former trial, or conversing with witnesses, or from personal knowledge, then the juror is incompetent. It is not left with the juror to determine as to his qualifications. When the facts are elicited, it is a question of law to be *277 adjudged by the court. It is the property of the mind to receive impressions when hearing from an eyewitness the details of an alleged crime. Nor can it avoid forming an opinion as to the quality of the act, and of the action. Most men would be slow to admit that they could not discard such opinions, and render a verdict according to the evidence put before them on the trial. But experience has taught the danger of entrusting to such persons the issues of life or liberty ; unconsciously to themselves, the preimpression or opinion may be a factor in making up the verdict.

Such was precisely the condition of the juror Maxey; he had formed an opinion from the testimony, or some of it, yet he wa3 “ free as water ” “ to act without regard to the opinion formed.” He had an “ opinion,” but such was his self confidence, he was “ free ” still to receive testimony and pronounce the truth. But the law adjudges a juror to be biased, and not “ free,” who has formed an opinion from such a source, and so far doubts his moral ability to overcome its subtle influence that it pronounces such an one an incompetent juror.

The other assignments of error relating to the organization of the grand jury, the venire facias, and the jurisdiction of the court to try the defendant on the indictment, are all met and cured by §§ 729 and 2843, Code of 1871, and the expositions of them in Head’s case, 44 Miss., 749 , and Durrah’s case, ib., 795. The record is full on the point also of the finding of the indictment, and its return into court. After the grand jury has been sworn and impaneled, exceptions which go to the drawing, summoning, or to individual members, come too late. If the defendant goes to trial without being served with a copy of the special venire, the proper length of time, he will be taken to have waived it.

For the error in overruling the objection taken to Maxey, and admitting him a member of the jury, the judgment is reversed, and cause remanded for venire facias de novo.