
    *Osiander v. The Commonwealth.
    July, 1831.
    [23 Am. Dec. 693.]
    Criminal Law — Jurors — Opinion Formed — Competency. — A person called as a juror in a criminal case, and examined as to his indifferency - on Ms voire dire, declared, lie 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, hut 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 without prejudice: and it did not appear, that the witness had ever before expressed the opinion he had so formed —Held, such preconceived hypothetical opinion did not constitute good cause of challenge to the juror. ,
    Same — Same—What Preconceived Opinion Is Good Cause for Challenge. — 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.
    Same — Same—Opinion Formed — Necessity of Expressing — Quaere.—If apersoncallas ajurorhasformed 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 Campbell, tried and convicted, and sentenced to two years imprisonment in the penitentiary. In impan-neling 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 eruilt 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 examination), 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 examination;” but the court being of opinion that there wds no legal objection to the juror, overruled the challenge; to which opinion the prisoner filed a bill of exceptions. And now he presented a petition to this court, complaining that the circuit court erred in overruling the prisoner’s challenge to Love, for cause, and playing a writ of error to the judgment.
    C. R. Baldwin, for the petitioner.
    An opinion is hypothetical, when it depends on the question either of the truth, or of the legal effect of the evidence: the mind is undecided as to the guilt or innocence of the accused, so long as it doubts whether the facts are true as represented, or if true, whether they constitute or prove the crime alleged. In this case, no doubt, in either respect, existed in the mind of the juror Love. He said, he had no doubt of the truth of the facts, as he had heard them; and he could have had no doubt as to the legal effect of them; for he said, that if the same facts should be proved at the trial, he would come to the same conclusion; his former opinion would remain. How, then, was Love’s opinion hypothetical? His opinion was, in effect, a substantial, decided one, though called hypothetical; and an opinion, too, not lightly and hastily taken up, or founded on mere rumour, but deliberately formed upon a statement of the facts by one of the witnesses in the cause, strengthened and confirmed by the reports of the country.
    *In Sprouse’s case, 2 Virg. Ca. 37S, the court, speaking of an opinion that would be good cause of principal challenge, said, it was an opinion formed on reflection. In that case, the juror Wiant had formed a pretty substantial opinion, upon relations of the evidence which he believed to be true: so had the juror Love, in the present case. There, Wiant had not heard the evidence, or conversed with any of the witnesses, and his opinion was founded only on rumours in the country: but here, Love had heard a state of the facts from one of the witnesses, and his opinion was founded on that statement and upon the reports of the country. Wiant thought that as a juror he could do the prisoner justice, and declared he felt no prejudice, and was open to conviction. Love felt satisfied, that if the proof should alter the case from the reports of it which he had heard — that is, only in that case — he would be able to decide the cause according to the evidence, uninfluenced by the reports he had heard or ’ the impression they had made on his mind; a tacit admission, that, without a change in the evidence of the facts, the opinion he had formed would remain unaltered, and was not to be removed by any argument of the prisoner’s counsel, or by any information from the court as to the law applicable to the casé.
    In Pollard’s case, 5 Rand. 6S9, the juror Parker had heard the testimony of one of the witnesses, and had formed an opinion at the time he heard it, but he declared, in very strong terms, that at the time of the trial, he had no prejudice against the prisoner or his cause: it did not appear that he had, then, any existing opinion: his first impression, hastily formed, without deliberation or reflection, had probably been abandoned. In the present case, the opinion Love had formed, was in its real character a decided one, existing at the time of the trial.
    In Brown’s case, 2 Leigh, 769, the objection to the juror was held insufficient, because it did not appear that he had formed and expressed a decided opinion. It is true, in this case, that the epithet decided is not prefixed to the word ^opinion ; the juror, Love, said he had formed a hypothetical opinion. But judging from the explanation he gave, he probably did not understand the import of the phrase he used; for that shews, plainly enough, that his opinion was absolute, fixed and decided. In his actual state of mind, the juror had no doubt; but if the evidence should alter the state of the case from that on which he had formed his opinion, he thought he would be able to decide the case, uninfluenced by the reports he had heard, or the impressions they had made on his mind. Perhaps he might; but was he, therefore, an indifferent juror?
    The evidence might present the case in a diilerent aspect, and yet leave a striking resemblance: could the court or the juror be sure, that his first impressions would change with the varying hues and colours given to the case by the evidence at the trial? On the contrary, would he not be apt to view every circumstance as corroborative of his preconceived opinion? and if the prominent features of the case as proved, were found like those of the case as reported, might he not, very probably, disregard minor, yet material, points of difference? In cases depending on circumstantial evidence, differences in the testimony, apparently slight, maj' destroy the connexion of the circumstances; and to break a single link, is to destroy the whole chain. The evidence may leave very strong doubts of a prisoner’s guilt, on the mind of a juror, wholly unprejudiced, while a juror prepossessed with information out of doors, and with an opinion formed upon it, will hardly be able to separate the proof in court from the information he has received cut of court, or his present from his former impressions. Therefore, however confident the juror, in this case, may have been of his own capacity to give the prisoner a fair trial, it seems to me, that the law should distrust him.
    It may be said, that the opinion which Love had formed, had not been previously expressed. It does not appear that it was. But it is not the mere giving expression to an opinion as to the guilt or innocence of a person accused, without *any regard to the character of the opinion expressed, that can disqualify the person expressing it from being a juror in the case. Terrell in Sprouse’s case, Parker in Pollard’s, and the juror in Brown’s, had each expressed the opinion he had formed. Doubtless, a man may be somewhat more committed after he has publicly expressed an opinion, than when it is known only to himself: still the court will look at something more than the expression : it will look into the opinion itself, and see whether it was hasty, and really hypothetical, and founded on vague rumours, or deliberately and decisively formed upon a probable state of the facts. I can find no case, in which it has been adjudged that the opinion must have been expressed. In England, the triers are sworn well and truly to try whether the juryman stands indifferent between the parties to the issue; and the trial proceeds by witnesses. They may examine the juryman challenged, on his voire dire, as to the leaning of his affections; but he cannot be interrogated, whether he has previously declared his opinion that the prisoner is guilty: such a declaration would be considered as tending to his own disgrace. 1 Chitt. crim. law, S50. But it may be proved by witnesses. The appeal to the conscience of the juror, is to enable the triers to judge of his indifferenc3>-; and if he has never expressed his opinions, there can be no other way of ascertaining whether he is indifferent or not. The question always is, simply, whether the juror stands indifferent? If his opinion has been formed on a state of facts which he fully believed to be true, and continues to believe, can he be held to be an indifferent juror, merely because he has never before expressed the opinion. He ma.y be a just man ; he may have no malice against the accused ; he may feel compassion for him ; but if he fully believes him guilty, he is prejudiced against his cause; and his mind, thus prepossessed, will naturally struggle against the conviction of the prisoner’s innocence, which, otherwise, the testimony might be well calculated to produce.
    
      
       Criminal Law — Jurors—Opinion Formed — Competency. — On this point the principal case is cited in foot-note to Com. v. Hailstock, 2 Gratt. 564; Jackson v. Com., 23Gratt. 931, 933, '¿mlfoot-note; Armistead v. Com., 11 Leigh 659, 662 (see also, foot-note); Heath v. Com., 1 Boh. 742; Thompson v. UpdegrafE, 3 W. Va. 644; State v. Baker, 33 W. Va. 324,10 S. E. Bep. 641; The Anarchists’ Case, 8 Sup. Ct. Bep. 26,123 U. S. 131. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   *SCOTT, J.

The cases heretofore decided by this court, have settled, that one who has formed and expressed a decided opinion as to the guilt or innocence of the accused, is not a competent juror ; and that it is not material, whether that opinion be founded on the evidence of witnesses whose testimony he may have heard, upon another trial, or conversations with witnesses, or common report; it is enough, thar the opinion is a decided one, and has been expressed The expression of an opinion goes far to shew that it is a decided one. It is, in general, not so readily abandoned as one which never has been avowed. So case, however, has gone the length of deciding, that an opinion, however deliberately it may have been formed, and however decided its character, is not a disqualification, unless it has been expressed; Ñor does the court think it necessary to give any opinion on that question on the present occasion ; being unanimously of opinion, that the impressions of ¡he juror, in this case, were not of that deliberate and decided character which is necessary to disqualify a juror. He stated, that his opinion was hypothetical, and although he did not doubt the truth of what he had heard, yet, if the evidence turned out otherwise, he had no doubt but that he would be able to decide according to the evidence, without being in any degree influenced by the impressions made on his mind by what he had heard. An opinion, which is declared by the party entertaining it, to be hypothetical, one which will not in any degree influence his decision, cannot be a decided one ; it cannot have been formed on deliberation. t

"Writ of error denied.  