
    Palmer v. State.
    1. The impaneling of the jury is embraced in the “ trial ” of a cause, within the meaning of section 7356 of Revised Statutes as amended April 18, 1883 (80 Ohio Laws, 170).
    2. Section 7278 of Revised Statutes, as amended March 13, 1884 (81 Ohio Law, 53), commonly called the Pruden jury law, is not in conflict with section 10, article 1, of the constitution of the state, which guarantees to every person accused of crime “a speedy public trial by an impartial jury,"
    3. A person called as a juror in a criminal case, who clearly shows himself, on his voir dire, not to be impartial between the parties, isnot rendered competent by saying that he believes himself able to render an impartial verdict, notwithstanding his opinions, although the court may be satisfied that he would .render an impartial verdict on the evidence.
    4. The discretion eonferred upon the court by the second clause of section 7278, Revised Statutes, as amended March 18, 1884 (81 Ohio Laws, 53), is a sound legal discretion and may be reviewed and reversed for manifest abuse.
    5. Under section 79 of Revised Statutes, a repealed or amended statute, relating to the remedy, is to govern in the trial of a prosecution pending at the time of the repeal or amendment, unless otherwise expressed in the repealing or amending statute.
    Eeeoe to the District Court of Hamilton county.
    
      At the January term, 1884, of the court of common pleas of Hamilton county, Joseph Palmer was indicted for the murder of William 0. Kirk on December 24, 1883, at said county; subsequently the indictment was destroyed by fire and the copy thereof, which had been served on the accused, being lost or mislaid, by leave of the court the prosecuting attorney entered a nolle prosequi as tó this indictment, and the accused was reindicted for the same offense at the May term of said court, in the meantime remaining in custody on said charge. Upon this indictment, the plaintiff in error was tried and convicted of murder in the first degree in June following.
    At the impaneling of the jury'which tried and convicted the plaintiff in error, one í). L. Sampson was called as a juror and was examined on his oath touching his qualifications, with the following result, as shown by the record.
    Examined by Mr. Gerard, counsel for the State: Q. Have you formed or expressed any opinion as to the guilt or innocence of the accused, Palmer in this case? A. Yes Hr.
    Q. Notwithstanding that opinion, would you be able, if sworn as a juror, to give a fair and impartial verdict as between him and the state ? A. If I had strong evidence to withhold that opinion.
    Q. Never mind the evidence. Would you be able to lay aside the opinion and take the evidence, if there was any evidence to acquit him and if there was evidence sufficient to convict him of whatever he was guilty of? A. Well, I think I could.
    Q. Could you, in other words, go into the jury box and be governed by the evidence and by what the court tells you, and lay aside that opinion for the time being ? A. I would try to ; yes, sir.
    Q. Do you think you could do it ? A. Yes, sir.
    Q. Are you- opposed to capital punishment ? A. No, sir.
    Q. You are not the client of any of the attorneys in this case ? A. No, sir.
    Q. Have you been on the grand jury lately ? A. No, sir.
    Examined by Mr.. Symmes, counsel for defendant. Q. What is your name ? A. D. L. Sampson.
    
      Q. From what did you form that opinion ? A. From reading the newpapers.
    Q. Was it merely a newspaper statement, or was it a report of the testimony before the "coroner? A. Well, I have read all, I think.
    Q. Did you read the testimony taken before the coroner’s jury? A. I think I did.
    Q. Did you read what purported to be a confession of the prisoner? A. Yes, sir.
    Did you read the testimony in the Rerner trial? A. Yes, I did.
    Q. You form your opinion from all you read ? A. Yes, sir.
    Q. And on those things, including the testimony in the Rerner trial? A. Yes, sir.
    Q. Have you that opinion yet? A. Yes, sir ; I have.
    Q. If you was sworn as a juror you would go into the box with that opinion, would you not ? A. Yes, sir.
    Q. I will ask you if your opinion would not remain the same after you were sworn, until it was changed by the testimony ? A. Well, I think it would, unless there was some testimony to change it.
    Q. Would it require strong testimony to change it ? A. Yes, sir; it would require strong testimony.
    Q. Would it require that strong testimony should be furnished by the defendant ? A. It would.
    Q. 6Until that was done you would still be governed by your opinion ? A. Yes, sir.
    Q. Even if you were sworn ? A. Yes, sir.
    
      Mr. Symmes : I challenge the juror for cause.
    Tee CouRT : I understood you to say to the prosecutor that you felt able tó sit as a juror and hear the evidence and render a verdict, notwithstanding the opinion. Was I right? A. Well, I sáy I would enter the box with that opinion.
    Q. No; I say I understood you to say to the prosecutor that you could sit here and hear the evidence and render a verdict upon that evidence, whatever it might be, without rendering it upon your opinion. Was I right ? A. Well, I say, as I said before, I would enter the box with that opinion.
    Q. Without respect to the evidence. If you were sworn as a juror to render your verdict upon the evidence, would you render it upon your opinion ? A. No, sir. I would render it upon the evidence.
    Q. Now, do I understand you could lay aside the opinion, and hear the evidence as a juror and render a verdict upon the evidence % A. If I went into the box I would try to lay that opinion aside.
    Q. Do you feel able to say that you could ? A. I think 1 could.
    Q. Do you feel able to say that you could render an impartial verdict upon the evidence and the law, aside from your opinion, notwithstanding your opinion ? A. I think I could; yes, sir.
    The Couet : The challenge is overruled.
    
      Mr. Gerard: The state has no challenge.
    
      Mr. Symmes : We challenge the gentleman peremptorily.
    The overruling of this challenge of Sampson for cause, is alleged for error, and as the use of a peremptory challenge as to hirii, diminished the number of such challenges allowed the defendant by the statute, and as the number of such challenges was exhausted before the jury was full, it is claimed the defendant was prejudiced by the error.
    
      James Lawrence, attorney general, for plaintiff in error:
    Under section 1356, Revised Statutes (amended, 80 O. L. 170), only errors of law, occurring at the trial or appearing in the pleadings or judgment, can be reviewed in the supreme court.
    The evident purpose of this amendment was to relieve the supreme court from the consideration of all preliminary questions. The natural and obvious separation between the trial and the preliminary’ proceedings incident thereto, is the point at which a prisoner is first put in jeopardy. To say that a person shall not be twice put in jeopardy for the same offense is equivalent to saying that he shall not be twice put on trial for the same offense. "Whenever the trial commences the prisoner is put in jeopardy.
    The legislature must be understood to have used the term “ trial,” in the same sense as already used in the Revised Statutes, § 5127. “ A trial is a judicial examination of the issues, whether of law or of facts, in an action or proceeding.”
    As thus defined, the term cannot include the selection of the tribunal, whether the court or the jury, which is to try such issues. The judicial examination o£ the issues referred to cannot commence until after the issues are made up and the tribunal which is to examine them has been constituted.
    In section 5190, Revised Statutes, it is provided that “ when the jury is sworn, the trial shall proceed, etc.” So in civil actions before a justice of the peace, if no jury has been demanded, the justice shall proceed to try the action at the time appointed for tidal; if a jury be demanded the trial of the cause must be adjourned ; and after the jury shall have been sworn, they shall sit together and hear proofs and allegations of the parties, or in other words, judicially examine the issues between them. Sections 6545, 6547 and 6557 Revised Statutes. Chapter 6, title II, part IV, Revised Statutes is entitled, “ Trial and proceedings incident thereto.” The subheading, “ trial,” is placed immediately before section 7300, and after the provisions for the impaneling and swearing of the jury, clearly indicating' that the selection of the jury is a mere incident to the trial, and, from the nature of things, is preliminary thereto. Section 7300 then follows, providing that, “ after the jury is impaneled and sworn, the trial shall proceed in the following order, etc.”
    The very expression, “trial by jury,” implies that the jury has been selected before the trial commences.
    The meaning of the word trial is discussed by Judge Story in the case of United States v. Gurtis, 4 Mason 232, and, although the precise question there was whether the arraignment was a part of the trial, yet the court clearly say that a “ trial ” means the trying the cause by the jury.
    The most liberal definition of the term “ trial,” cannot include more than the twelve men finally impaneled as a jury. The disqualification of persons summoned as jurors, but who never served as such, cannot be material. Nor can any proceedings, in relation to the selection of the jury, which do not affect the qualification of the jury which tried the case.
    <7. S. Symmes, for defendant in error •
    The law relating to qualifications of jurors, in force when the crime was committed, for which the plaintiff in error was indicted, was section 7278, Rev. Stats. Long after the commission of the crime and the original indictment this section was amended (81 Ohio Laws, 53), and rendered persons who were incompetent to sit as jurors under section 7.278, before its amendment, competent. The trial of the prisoner under the amended section was to his prejudice, and was in violation of the United States and state constitutions. Art. 1, section 9, U. S. Const.; art. 1, section 10, State Const.; Wring v. State, (Mo.) 2 Sup. Ct. Reporter, 443 ; Cooper v. State, 16 Ohio St. 328, 331. The jury that tried the prisoner was not an impartial one, and the court pérmitting the selection of such a jury was such an abuse of its discretion as to entitle the plaintiff in error to a reversal of the judgment.
   McIlvaine, J.

The first point claiming the attention of the court is raised by the state. It is claimed that this court has no jurisdiction in the premises. The jurisdiction of the supreme court, in criminal cases, is limited by section 7356 of Revised Statutes, as amended April 18, 1883 (80 Ohio Laws, 170), as follows : “ But in the supreme court only errors of law occurring at the trial or appearing in the pleadings or judgment can be reviewed.”- The point is, that errors of law occurring at the impaneling of the jury are not reviewable. This depends on the solution of the question whether the impaneling of the jury is a part of the “ trial,” within the meaning of this statute. In section 7269 of thé sam„e chapter of the statute, it is provided that “ the first thirty-six jurors who answer to their names at the trial,” &c. This evidently relates to a point of time anterior to the swearing of the jury. Again, section 7300 provides “after the jury is impaneled and sworn, the trial shall proceed,” &c. This use of the word proceed, instead of commence, indicates that the trial was in progress. Hence, we have concluded that within the meaning of this statute the impaneling of 'the jury is embraced in the trial ” of the cause.

At the time plaintiff in error was tried in the court of common pleas, section 7278 of Revised Statutes, as amended March 18, 1884 (81 Ohio Laws, 53), was'in force, which prescribes the causes for challenging a person called as a juror in criminal cases. Among other things it prescribes as a cause for challenge that he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror on oath as to the grounds of such opinion, and if ■such juror shall say that he believes he can render an impartial verdict, notwithstanding such opinions, and if the court is satisfied that such juror will render an impartial verdict on the evidence, may admit him as competent to serve in such case, as a juror.” The constitutionality of this statute has been established (Wagner v. State, ante, 537), and is not now in question. The provision of the constitution which it was supposed to violate, is in section 10, article 1, which guarantees to every person accused of crime “ a speedy public trial by an impartial jury.” For a long time it was assumed in practice that a person who had formed or expressed an opinion as to the guilt or innocence of the accused, was not an impartial juror. That .the forming or expressing of such opinion is strong evidence of a prejudice that is inconsistent with impartiality, has never been doubted; but that it is necessarily equivalent to a partiality, which renders the juror incompetent, is not true. That an opinion as to the guilt or'innocence of a person accused off crime, based upon the hypothesis of the truth or falsity of certain information, without any opinion or conviction as to the truth or falsity of the information, is entirely consistent with such impartiality, as is contemplated by this provision of the constitution. A wide margin existed between the practical rule and the constitutional rule on this subject. In the course of time, as the means of disseminating information and news was greatly augmented in the state, by the increase of newspapers, the general assembly curtailed the grounds of challenge in this respect, as it might well do, and the result was the rule laid down in original section 1278 of Revised Statutes, as follows: “ that he has formed or expressed an opinion as to the guilt or innocence of the accused ; but if a juror state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror, on oath, as to the ground of such opinion, and if it appear to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and the juror state, on oath, that he -feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial, and will render such verdict, may, in its discretion, admit him as competent to serve in such case.”

The whole ground of legislative discretion was not occupied, but as an opinion based on conversations with witnesses of the transactions, or the reading of their testimony, or hearing them testify was more likely to prejudice the person entertaining it, such opinion is left as an absolute cause of challenge.

Subsequent circumstances occurred in the history of the state which induced the general assembly to again modify the rule, by further limiting the grounds of challenge for cause by the amendment of section 7278 (81 Ohio Laws, 53, commonly called the Pruden Law), whereby an opinion based on conversations with witnesses of the transactions, or hearing them testify, or reading reports of their testimony was not sufficient ground for challenge, if the juror, on oath, would say that he believed he could render an impartial verdict notwithstanding such opinion, and the court were satisfied that such juror would render an impartial verdict on the evidence. The whole'field of legislative discretion was thus occupied, but not overreached. The constitutional rule was not violated, as it is quite clear that a juror having formed an opinion of the guilt or innocence of the accused from such information may, nevertheless, be impartial within the meaning of the constitution.

It must, however, be affirmed, that neither legislative discretion nor a discretion conferred by the legislature upon the court, can be allowed to detract one jot or tittle from the guarantee of the’constitution that the accused shall bo tried by an impartial jury. That this statute may have a constitutional operation to the full extent of the language employed, has, heretofore been recognized by this court; but that the court, under the discretion given it by the statute, may evade or nullify the provision of the constitution no one will for a moment contend. Whatever latitude might otherwise, by construction, bo'placed on the discretion given-to the court, it is beyond doubt that the limit imposed by the constitution cannot be overleaped. No juror can be impartial whose prejudice or bias, as to the whole issue, has the force or effect of evidence at trial. This discretion is not absolute, or its exercise a finality. It is a sound legal discretion and can be reviewed. The constitution is not made of such flimsy stuff that its guarantees can be thus brushed aside. The general assembly had no intention to establish such a rule.

In the judgment of the majority of the court, the challenge for cause of the juror Sampson should have been sustained, and the error of the' court in overruling the challenge was prejudicial to the accused.

The juror, on oath, stated that he had formed and expressed an opinion as to the guilt or innocence of the accused, that his opinion had been formed from the reading of the testimony of witnesses in the ease and the reading what purported to be a confession of the accused. That if sworn as a juror he would take his opinion into the jury box, and that the opinion would remain the same until it was changéd by testimony, and that it would require strong testimony from the accused to change his opinion ; and that he would, as such juror, be governed by his opinion until it was so changed.

It is true that the.juror admitted, being pressed thereto, that he felt able to render his verdict upon the evidence, and lay his opinion aside, or at least he would try to do so, and he thought he could do so. The case was thus brought within the letter of the statute which authorized the court, if it were satisfied that the juror would render an impartial verdict on the evidence, to admit him as competent to serve as a juror, but we think the case was not within the spirit of the statute, for the reason that the juror had shown himself not to be impartial within the meaning of the constitution. The juror must be impartial. The opinion of the court that he will render an impartial verdict on the evidence is not equivalent to 'the guarantee of the constitution. A juror may have been an eye-witness to all the circumstances of the transaction which constitute the crime charged; sucha juror is not impartial, and the opinion of the court that he is able to render an impartial verdict in the case, does not render him impartial.

The true spirit and meaning of this statute is that notwithstanding an opinion formed or expressed by the juror, if he believe himself to be impartial and able to render a verdict according to the evidence, the court being satisfied of his impartiality, he may be admitted as a competent juror to try the case.

In our opinion, the court below, in following the letter of the statute, overlooked its principle, and confounded the impartiality required by the constitution with the ability of the juror, notwithstanding his prejudice, to render an impartial verdict, and by overruling the challenge, imposed upon the accused a risk or burden which the constitution relieved him from bearing.

The judgment below must be reversed for another error appearing on the record. The defendant was tried in June, 1884, and the jury was impaneled under the Pruden law; which was passed on March 18, of that year. The crime for which the accused was tried and convicted was committed in December, 1883, and the prosecution of defendant therefor was commenced soon thereafter, the first indictment being found against him, jointly with one Berner, for the crime of which he was convicted in January, 1884. This indictment having been destroyed by fire, another indictment for the same crime was returned by the grand jury in May of the same year. The Pruden law was passed after the prosecution had commenced and while it was pending. The Pruden law repealed the original section 7278 of Revised Statutes, which was in force at the time the crime was committed and when the prosecution therefor was commenced, and for some months while such prosecution was pending in the court of common pleas of Hamilton county.

By section 79 of Revised Statutes, which has been in force since its enactment, it is provided that Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed.” By this section it is quite clear that the Pruden law had no application to the prosecution of plaintiff in error which was pending before its passage.

The repeal and amendment of original section 7278 related to the remedy for the offense as was then being prosecuted against the plaintiff in error, and it was not expressed in the amended act that it should have effect in pending prosecutions.

It follows therefore that the jury in this prosecution should have been impaneled in accordance with the provisions of the repealed section, which made an opinion formed from reading the report of the evidence of witnesses of the transaction a good and sufficient cause for the challenge of a juror. See Hartnett v. State, reported in this volume.

Judgment reversed and causé remanded for a new trial.

Johnson, C. J.

I concur in the judgment but dissent from so much of the opinion of the majority as holds that the trial judge abused the discretion vested in him, in accepting Sampson as a competent juror.

This discretion is a sound legal discretion, which this court cannot review, unless it is clear to the reviewing court that there has been a manifest abuse of that discretion. Hanof v. State, 37 Ohio St. 178. Whether the juror was impartial, is a question of fact. The trial judge, who sees the juror, observes the kind of man he is and the manner as well as the matter of his answers, is far more competent to decide as to the competency of a juror, than a reviewing court. 1 do not think, taking all Sampson said on his voir dire, that this court can fairly say, that the trial judge so manifestly abused his discretion as to warrant this court in reviewing his action in this respect.  