
    Joseph Watt Fugate v. State of Mississippi.
    1. Criminal Law. Jurors. Competency. Code 1892, ?, 2355.
    Under code 1892, § 2355, providing that any person otherwise competent who will make oath that he is impartial shall he competent as a juror in any criminal case, although he has an im- . pression or opinion as to the guilt of the accused, if it appear to the court that he has no bias and no desire to reach any result except that to which' the evidence may conduct, the oath of the proffered juror is not conclusive, nor is he the judge of his own competency.
    2. Same.
    A person is not qualified as a juror:
    (а) Wh'o has an opinion about the, case and cannot say positively that he can try the case as though he had none; or
    (б) Who has an opinion about the case and from what’ he knows could bring in a verdict (other than one predicated of a want of further knowledge) without further evidence; or
    (e) Who has an opinion about the case which it would require strong testimony to remove.
    From the circuit court of Prentiss county.
    Hon. Eugene O. Sykes, Judge.
    Eugate, appellant, was indicted, tried and convicted of murder in- the court below and appealed to the supreme court. The facts upon which the decision is based are fully stated in the opinion of the court.
    
      
      J. M. Boone, B. A. Selman, Samuel P. Allen and Candler & Candler, for appellant.
    If we are to stand by the splendid enunciation of Justice Stockdale upon the subject of a fair and impartial trial, as delivered by him in the case of Jejfries v. State, 74 Miss., 675,. in which cause the disqualification of one juror was involved, then it inevitably follows under the principles enunciated in that case that where five jurors failed to measure up to the standard as to impartiality required by law, the result can only be a reversal of the case.
    In Cannon v. State, 57 Miss., 147, the expressions of the juror was no stronger against the defendant than the statements of these jurors. Undoubtedly the above jurors had prejudged this case favorably to the defendant, and for that reason alone a new trial was granted in the Cannon case.
    In Brown, v. State, 57 Miss., 431, this court, speaking through Judge George, said: “The intention of the law is that the juror shall come to the consideration of the case unaffected by any previous judgment, opinion or bias, either as respects the parties or the subject-matter in controversy.” . . . This cannot be, if a juror has a fixed and settled opinion on the subject-matter in controversy, or as to so much of it as would materially affect his judgment on the whole. As a general rule, the inquiry in a criminal case is as to the state of the juror’s mind on the question of the guilt or innocence of the accused. If he has a fixed opinion on the subject, he is excluded, because he goes into the jury box with an opinion either for or against the prisoner, which must, according to the laws of the human mind, operate as a substitute for evidence. "We know that, where a fixed opinion is thus entertained, the natural tendency of the mind is to seek for that in the evidence which will tend to confirm it, and to weaken or explain away the evidence which is against it. The mind is not, therefore, free to act on the evidence.” Tested by this rule, each of the five jurors were clearly incompetent.
    
      In. Mabry v. State, 71 Miss., 721, the court pronounced tbe juror, Hyman, incompetent, because he bad a fixed and definite opinion and -would not say positively wbetber be could try tbe case as though be bad no opinion.
    It will be observed that most all of tbe jurors above complained of would not say positively wbetber or not they could give a fair and impartial trial, and would not say positively that their opinion would not embarrass them in rendering a verdict, and clearly, under tbe Mabry case, supra, all five of tbe jurors now under consideration were incompetent.
    In tbe Klyce case, 79 Miss., 652, tbe court enforced tbe idea of liberal interpretation in favor of tbe accused, as shown in § 2355 of tbe code on this subject. In that case tbe court declined to bold a juror who bad an opinion competent, merely because be stated be could try tbe case impartially, for tbe reason that tbe juror may so state, and may think so, but it is for tbe court to say wbetber be in fact would so try tbe case, in tbe light of tbe weakness of human nature.
    While it is true that tbe court in the Klyce case seems to base its reversal upon tbe fact that tbe juror beard tbe facts from the state witnesses, yet, it does not negative the idea that this opinion formed from talking to persons who talked with tbe state witnesses would not equally render tbe juror incompetent. Tbe juror, Browning, in tbe case at bar, stated-that parties who beard tbe witnesses testify in tbe court bad told him of their statements. Several of tbe other jurors complained of stated that they did not know wbetber tbe parties who talked to-them were witnesses or not, and for all we know, they might have been witnesses.
    
      William Williams, attorney general, for appellee.
    It is submitted that tbe jurors mentioned in tbe first, second,, third, fourth, and fifth assignments of error, were competent jurors under tbe statute and adjudications of this court. Each and every one of them testifiec^ that be bad no bias or feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence might conduct.
    The competency of a juror is a matter that is left largely to the sound discretion of the trial judge. By reference to the record in this case and to Klyce’s case, 79 Miss., 652, it will be seen that there is a wide difference between the two cases, in this: In Klyce’s case the juror had heard the testimony from the state witnesses, and said that he had an opinion. His opinion was not based on rumor, as the opinion of the jurors referred to in the present assignment of error. The jurors mentioned in the assignments of error above referred to, said that they had an opinion, which was based upon rumor, but that it would readily yield to testimony in the case, and that the opinion they had would not in any way embarrass them after hearing the law and testimony in the case in rendering a verdict, and that they would feel free to sit in the jury box and render a fair and impartial trial.
    The ruling of the trial court as to the competency of the above named jurors does not conflict with the holding of the court in Klyce’s case.
    Argued orally by J. M. Boone, for appellant,‘and by William Williams, attorney general, for appellee.
   Price, J.,

delivered the opinion of the court.

The defendant was tried at the August term, 1902, of the circuit court of Prentiss county, for the murder of Ransom Cunningham, was convicted and sentenced to be hanged, and appeals to this court.

Assignments of error 1 to 5, inclusive, go to the competency of Jurors Randall, Kinard, Browning, Pinson and Waters. At the very threshold of this case we are met with the proposition, were the above-named jurors competent? If this question be decided in the negative, then it would be useless to notice any other of the- numerous assignments of error. The proposed Juror Randall, upon his voir dire, after stating that he had some opinion of the guilt or innocence of the accused, and. that it would take evidence to remove it, was asked by defendant’s counsel : “If you heard no more facts about the case, you would be prepared to decide the case as you now stand?” “Yes, sir.” Juror Kinard, upon his preliminary examination, after stating that he had an opinion from what he had heard, was asked: “If you were not told anything more about it, and the court w!as to tell you to go out there and bring in your verdict, could you go out there and pronounce him guilty or not guilty ?” “Yes, sir; I would think him guilty of the killing.” By the court: “Would that opinion, which you say is based on rumor, embarrass you in any way when it came to rendering a verdict in the case after hearing the testimony and -the law ?” “I think not.” The proposed juror Browning, on his examination, after stating that he was in Booneville during the eight days the habeas corpus trial was in progress, and' was not around the courtroom at the time, except two or three times, and that he had formed an opinion from rumor of the guilt of the defendant, was asked: “Were they discussing it with you and in your presence ?” “Sometimes it was being discussed with me.” “They would tell you the facts as they understood them ?” “Yes, sir.” “Did you believe what they said about it ?” “Yes, sir.” “You still have that opinion ?” “Yes, sir.” “Are you prepared, if you heard no more about it, to render a verdict in this case ?” “I don’t think I am.” “Did these parties tell you what they heard the-witnesses sayurp here in the court house?”' “Yes, sir.” “You say it would take evidence to remove that opinion which you now have?” “Yes, sir.” Juror Pinson, after stating that he had heard of the case, and heard people talk of it, was asked: “Did what they told you make any impression on your mind as to how the killing occurred?” “Yes, sir; it did on one side.” “Did it not impress- you on the other'side?” “No, sir.” “You formed your opinion from one side of the question ?” “Yes, sir.” “You still have that opinion ?” “Yes, six.” “Would it take testimony to remove it?” “Yes, sir.’.’ “Pretty strong testimony ?” “If I could hear the testimony, I could tell you more about that.” “You would have to measure the weight of it yourself ?” “Yes, sir.” “Axe you pretty well fixed about your opinion of things, when you hear statements— do you stand by your opinions pretty well ?” “Yes, sir.” “You are on one side of the case now?” “Yes, sir.” “You don’t know the people who are witnesses — are any who told you about it witnesses?” “No, sir.” “Your mind is made up, and will stay that way until testimony changes you?” “Yes, sir,” Juror Waters, upon his preliminary examination: “You have a decided opinion whether he is innocent or guilty of the charges, from what you have heard about the case?” “I can’t say whether I have or not; I just have a firm opinion.” “You have a firm opinion on one side of the case now?” “Yes, sir.” “It would take plain and positive testimony to remove that opinion ?” “Yes, sir.” “Your opinion is such' that slight evidence would not remove that opinion ?” “No, sir.” “It would take pretty strong evidence to remove that opinion.” “Yes, sir.” Each of the proposed jurors was .asked by the court: “If, notwithstanding you have an opinion in the case, would that opinion embarrass you in any way if you were permitted' to sit in the jury box?” and they answered “No”; each disclaiming bias, and saying they were impartial. The court pronounced each of said jurors competent, over the defendant’s exception, and they were challenged by the defendant peremptorily, and the twelve challenges allowed defendant were exhausted.

Section 2355 of the code of 1892 does not mean that the mere fact that a proposed juror makes oath that he is impartial shall be conclusive of that fact. That section was intended to prevent the exclusion of a proposed juror on the mere ground that he had an impression or an opinion. Having such impression or opinion, he should not be summarily excluded, if he would make oath that he was impartial. But, the oath made, it is at last, by the statute, referred to the judgment of the circuit judge whether the juror is in truth and fact impartial, as to which the circuit judge will determine from all the evidence addressed to that point. He may, from all the evidence, hold him impartial, though he has an impression or an opinion. These opinions or impressions producing no fixed conclusion, leaving the proposed juror without bias of feeling or prejudice, and with the desire to reach only the result to which the evidence should conduct, are not enough to disqualify. But a settled opinion arising from rumor, from discussing the facts of the ease with others, from hearing the witnesses’ account of the testimony, and not knowing whether such proposed juror could ignore his opinion, being on one side of the case, with convictions that would require strong and positive evidence to remove, does disqualify a proposed juror. Most men, upon being asked by the trial judge, would answer that they could try a case impartially, notwithstanding an opinion. New would answer— though, unconsciously to them the fact might be — that they had a desire to reach a verdict to which the evidence did not conduct, although their minds were so fixed, biased, or prejudiced as to easily reach a verdict to which the evidence did not logically conduct. Such is the constitution of the human mind, such the frailty and imperfection of human nature, that one could hardly be expected to declare himself controlled by bias or prejudice when under oath. And perhaps the more honest the man, the more solemnly would he assert his freedom from both. It is for the circuit judge, in view of all the evidence, knowing the tendency of human nature, to satisfy himself, in the language of the statute, that the proposed juror is impartial. He must be satisfied. He should not, in the case of doubtfully balanced competency, give the state the benefit of the doubt. It is his duty to see that a fair, competent, and impartial jury is selected to try every case.

In this case there was manifest hesitancy and distrust displayed on the part of some of the proposed jurors themselves. The law and the evidence would have effect upon such jurors. How much — just some, or controlling effect? If a juror has an opinion, and will not say positively that he could try the case as though he had none, he is not a, competent juror. As said by this court, speaking through Justice Stockdale, in Jeffries v. State, 74 Miss., 677; 21 South., 526, it would be placing too low an estimate upon the lawmaking power to say that it intended to remove or infringe upon the safeguards of the lives and liberties of the people, to authorize the trial of one charged with crime by a partial or prejudiced jury; jurors with convictions so strong as to enable them to bring in a verdict without other evidence, or with an opinion that would require strong and positive evidence to remove it, especially when the law is that the evidence should be so cogent and conclusive as to exclude from the mind of the jury every reasonable doubt of guilt. The defendant is never called upon to produce strong evidence of his innocence, but he has answered the law’s demands when there arises out of the evidence, or from lack of evidence, a reasonable doubt of his guilt.

As we answer the proposition proposed in the negative, it becomes unnecessary for us to notice any other of the twenty-four errors assigned.

The judgment of the lower court is reversed, and the cause is remanded.  