Garner v. State

Woods, C. J.,

delivered the opinion of the court.

Upon the impaneling of the jury, one Boyd was examined upon his voir dire touching his qualifications as a juror, and swore that he was not related by marriage or otherwise to the deceased or to the accused, and thereupon the said Boyd was accepted as a j uror by the state and the defendant. After the panel had been completed and the jury specially sworn, and before any other step had been taken in the cause, the fact was ascertained by the defendant that a son of the said Boyd had married a niece of Scott Causey, the husband of Mrs. Maggie Causey, for the murder of both of whom the defendant had been indicted, and for the murder of the latter was then to be tried. The defendant then moved the court for leave to withdraw his acceptance of said Boyd as a juror and to challenge him for cause. The state formally admitted the facts set out in the motion, but the court overruled the motion. The defendant, having not exhausted his peremptory challenges, renewed his motion and prayed leave to challenge Boyd peremptorily, but this was by the court likewise denied, and this action of the court is assigned for error.

*519 It is important to note in this connection that in impaneling the jury the court sustained two challenges for cause, made by the state, to two veniremen because of their relationship to the defendant. One of these veniremen testified that he was a fifth cousin of the accused, and the other testified that he had been informed by some person that day that he was a third cousin of the accused, but that he himself did not know whether he was any relation of the defendant. As the prime object in impaneling the jury, and especially in trials for capital offenses, is to secure a fair and impartial body to which the momentous issue is to be submitted on the facts, the scrupulous regard paid by the court to the right of the people to have a fair and wholly impartial jury, in sustaining the challenges of the state to the two veniremen indicated is not open to criticism; and if the challenge of the defendant to Boyd had been made when he was examined on his voir dire, we cannot doubt that the challenge would have been allowed. But, under the circumstances, the power of the court to allow the defendant’s challenge to the accepted juror, Boyd, is clear, and should, we think, have been "exercised as asked. The power existed in the court when the motion was made to set aside the defendant’s acceptance of the juror and to allow the challenge," either for cause or peremptorily, following its former rulings on the state’s challenges of the two other veniremen, who were related or supposed, in one instance, to be related to the accused, the defendant’s motion should have been sustained and he permitted to challenge the obnoxious juror, who had been accepted in ignorance of his relationship to the deceased and her husband, and because he had answered that he was not related to them by marriage or otherwise. In the case of Lewis v. State, 9 Smed. & M., 115, it is said, with approval, that the rule is stated to be that an incompetent juror may be set aside at any time before evidence has been introduced, and in the case of McGuire v. State, 37 Miss., 369 , the same rule is distinctly laid down in a case involving this identical question. While the suf *520 ficiency of an objection to a juror is a matter resting for the most part in the sound discretion of the court, yet where there are reasonable grounds to suspect that the offered juror will act under some undue influence or prejudice, especially in capital cases, he should be excluded from the panel as incompetent. McGuire v. State, 37 Miss., 369 .

Under all the circumstances adverted to by us, it appears to our mind that the defendant’s motion should not have been denied, and that his challenge to the juror, Boyd, should have been allowed.

On the cross-examination by the state of the wife of the defendant, who was introduced on his behalf, she was asked if Henry Farnham came to her house on the morning in which the murder of Causey and his wife occurred, to which she answered, “Yes, sir, he came there about 11 o’clock.” She was then asked if she and her daughter were not crying when Farnham came up, and if she did not then tell Farnham that her husband had been over there (at Causey’s) and had killed Scott and Maggie Causey, and she denied the crying and denied the alleged conversation.

When Farnham was subsequently - introduced as a witness for the state and was asked as to the crying of Mrs. Garner and her daughter, and as to the alleged conversation, which had been denied by Mrs. Garner on her cross-examination by the state, the first being withdrawn, he testified that Mrs. Garner and her daughter were on the gallery of the house, and crying, and.that Mrs. Garner told him that her husband had gone over there (to Causey’s) and had killed Scott and Maggie —Mr. and Mrs. Causey. This evidence -the court refused to permit to go to the jury, and properly. Afterward, this witness was permitted to testify, over the objection of defendant, that he first heard of the murder about 11 o’clock, on the gallery of the house of. the accused, and that Mrs. Garner, her daughter and himself were the only persons present. The inevitable effect of this evidence upon the jury was to satisfy its *521 members, if believed by it, that Mrs. Garner or her daughter told the witness that the defendant committed the murder, though there is no pretense even that either Mrs. Garner or her daughter witnessed the horrible crime, and that, by indirection, the court permitted that to be done which it had correctly held could not be done directly. That the evidence was incompetent is manifest.

Applying the infallible test laid down by this court, in the elaborate and exhaustive opinion delivered in the case of Williams v. State, 73 Miss., 820 , the error in admitting this evidence of Farnham is palpable. “The test of whether a fact inquired of in cross examination is collateral is this: would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea?” Surely no one will contend that, if Mrs. Garner had been called as a witness for the state, the prosecuting attorney should have been allowed to ask her if she had not told Farnham that her husband had murdered the Causeys. It must be borne in mind, too, that no cautionary instruction touching this damaging evidence was given the jury, and they were thereby left free to regard it as criminating evidence against the accused. That its effect was immensely injurious to the defendant cannot be doubted. For the errors indicated, we feel bound to reverse the judgment.

Reversed and remanded.