
    *Commonwealth v. Hailstock.
    December Term, 1845.
    (Absent Lomax, J.)
    Criminal Law — Jurors—Preconceived Opinion. — A person called as a juror on a trial for a felony, swears, upon Ms voir dire, that he has not formed an opinion as to the prisoner’s guilt or innocence; and is challenged peremptorily by the prisoner; whereupon, on getting out of the courthouse, he remarks in a rather warm and excited manner, “It is -well I was rejected, for if I were on. the jury, I would send her the other side Boston.” After-wards the prisoner to make up the jury, elects this person as a juror, not then being-informed of his remark: Hkod. No ground for a new trial.
    This was a motion in the Court below by the prisoner for a new trial, which was adjourned to this Court for novelty and difficulty. The facts of the case are fully stated in the opinion of the Court.
    The Attorney General, for the Commonwealth.
    P. V. Daniel, jr., for the prisoner.
    
      
      Criminal Law — Jurors — Preconceived Opinion.— There have been many cases in Virginia upon the incompetency of j urors in criminal cases on account of preconceived opinions. Lithgow’s Case, 2 Va. Cas. 297; Sprouce’s Case, 2 Va. Cas. 375; Poore’s Case, 2 Va. Cas. 474; Pollard’s Case, 5 Rand. 659; Hughes’ Case, 5 Rand. 655; Mendum's Case, 6 Rand. 704; Brown’s Case, 2 Leigh 769; Osiander’s Case, 3 Leigh 780; Hendrick’s Case, 5 Leigh 707; Maile’s Case, 9 Leigh 661; Moran’s Case, 9 Leigh 651; Armistead’s Case, 11 Leigh 657; McCune’s Case, 2 Rob. 771; Heath’s Case, 1 Rob. 736; Hailstock's Case, 2 Gratt. 564; Epes’ Case, 5 Gratt. 676; Smith’s Case,6 Gratt. 696; Smith’s Case, 7 Gratt. 593; Clore’s Case, 8 Gratt. 606; Wormeley’s Case, 10 Gratt. 658; Montague’s Case, 10 Gratt. 767; Jackson’s Case, 23 Gratt. 919; Little’s Case, 25 Gratt. 921; Cluverius’ Case, 81 Va. 787.
      Same — Same—Same—Newspaper Report — Voir Dire. —A j uror who had not heard the evidence in a criminal cause on a legal investigation, or from witnesses, hut had read in newspapers a report given of the evidence on a former trial, and stated that from that he had formed a decided opinion as to the guilt or innocence of the accused, which it would require stronger evidence than he had read to remove, and who stated upon his voir dire that he had no prejudice or bias against the prisoner, and that he would regard it a duty, as a juror, under his oath, to discard that opinion, and that he could discard it, and have his mind as a blank, ready to receive the testimony that should be given on the trial, and that, while he would as a citizen entertain that opinion, yet as a juror he would not, but could and would hear and consider the evidence, and render a fair and impartial verdict according to the evidence, uninfluenced by such opinion, and whose statements satisfy the court of his fairness, is a competent juror. State v. Baker, 33 W. Va. 319, 10 S. E. Rep. 639.
      So in Smith’s Case, 7 Gratt. 593, it was held that the entertaining a decided opinion of the prisoner’s guilt, formed on the testimony as published in the newspapers, is not a valid objection to a juror, if he thinks he can discard his opinion, and that it would not influence his judgment, and that he could give the prisoner a fair, trial, according to the law and the evidence submitted to the jury. See also, Schuelle’s Case, 24 W. Va. 780.
      A juror’s having expressed himself, before the jury was empanelled, as determined to punish a prisoner if taken on the jury, not from any malice towards him, but from an opinion of his conduct, is no ground for setting aside the verdict and granting a new trial. Curran’s Case, 7 Gratt. 619, 622, citing Smith’s Case, 2 Va. Cas. 6; Poore’s Case, 2 Va. Cas. 474; Kennedy’s Case, 2 Va. Cas. 510; Brown’s Case, 2 Va. Cas. 516; Hughes’ Case, 5 Rand. 655; Jones’ Case, 1 Leigh 598; and Hailstock's Case, 2 Gratt. 564.
      Moreover, au opinion formed, must be deliberate and decided, to disqualify a juror. Curran’s Case, 7 Gratt. 619; Kennedy’s Case, 2 Va. Cas. 510; Munford Smith’s Case, 2 Va. Cas. 6; Armistead’s Case, 11 Leigh 657; Osiander’s Case, 3 Leigh 780; Thompson v. Updegraff, 3 W. Va. 629.
      Same — Challenging Jurors. — In State v. Greer, 22 W. Va. 824, it is said: “In Virginia and this state it has been repeatedly held, that a new trial will not be granted in a criminal case for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered before the juror was so sworn by the exercise of ordinary diligence; unless it appears that the prisoner suffered injustice from the fact that such juror served upon the case. Smith’s Case, 2 Va. Cas. 6; Poore’s Case, 2 Va. Cas. 474; Kennedy's Case, 2 Va. Cas. 510; Brown’s Case, 2 Va. Cas. 516; Hughes’ Case, 5 Rand. 655; Jones’ Case, 1 Leigh 598; Heath’s Case, 1 Rob. R. 735; Hailstock’s Case, 2 Gratt. 564; Curran’s Case, 7 Gratt. 619; Dilworth’s Case, 12 Gratt. 689; Bristow’s Case, 15 Gratt. 634; McDonald’s Case, 9 W. Va. 456. The same doctrine is held in civil cases. Sweeney v. Baker, 13 W. Va. 158; Flesher v. Hale, 22 W. Va. 44.” The principal caséis cited to support this doctrine in Sweeney v. Baker, 13 W. Va. 228; State v. McDonald, 9 W. Va. 465; State v. Hobbs, 37 W. Va. 812, 17 S. E. Rep. 385; Simmons v. McConnell, 86 Va. 500, 10 S. E. Rep. 838; Dilworth v. Com., 12 Gratt. 698; State v. Baker, 33 W. Va. 319, 10 S. E. Rep. 639. See, in accord. Beck v. Thomson, 31 W. Va. 459, 7 S. E. Rep. 447.
      It was held in Sweeney v. Baker, 13 W. Va. 160, that a new trial will not be granted, because the juror is alleged to have made up his mind on the merits .of the case, before he was called on the jury; unless it appears upon the whole case, that the party seeking the new trial suffered injustice from the fact that such juror served.
      For a further discussion of this subject, see Wormeley v. Com., 10 Gratt. 658, and note; Jackson v. Com., 23 Gratt. 919, and note, and foot-note to Bristow v. Com., 15 Gratt. 634. See generally, mono-graphic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   FIELD, J.,

delivered the opinion of the Court.

The prisoner was indicted and convicted of arson. After the verdict was rendered, a motion was' submitted on behalf of the prisoner for a new trial on the ground of a declaration made before her trial by Thomas Graves, one of the jury that tried her cause. In support of the motion, the affidavit of John H. Daniel, was filed. The affidavit of Graves the juror, was also taken and filed; and in connexion with those affidavits, the Court certifies: “That the said Thomas Graves was called as a juror in the said case, and being sworn on his voir dire, stated that he had not formed an opinion as to the prisoner’s guilt or innocence; and was then peremptorily ' challenged by the prisoner. That after the persons summoned on the venire who were in attendance, and all the bystanders had been called, and ^challenged, for cause, or peremptorily, two jurors were still wanting to complete the panel; and the sheriff was directed to go out into the neighbour-hood, and summon others for that purpose, when the prisoner by counsel proposed to elect two of those who had been challenged peremptorily, and thus complete the panel; to which the attorney for the Commonwealth assented; and thereupon the prisoner elected the said Graves as one of the two, and he was called and sworn as a juror in the case. From the affidavit of John H. Daniel, above referred to, it appeared that after Graves had been peremptorily challenged by the prisoner, and rejected, he went out on the Court green, and accosting the affiant, remarked in rather a warm and excited manner, “It is well I was rejected, for if I were on the jury, I would send her the other side Boston.” Some short time afterwards, Daniel went into the Court room, and finding Graves on the jury, was surprised at it, and communicated to the counsel of the prisoner what had been said to him by Graves. The trial had then been progressing for some time. Graves, in his affidavit, stated that he had no recollection of having used the expression ascribed to him by Daniel, though he has no doubt that he did so, as it is a common expression of his, and Daniel states the fact. If he did use the expression, it was without any meaning, and without any warmth or excitement on his part against the -prisoner, as he felt none. That when sworn on the jury, he felt no bias or prejudice against the prisoner, and believed he could give her a fair and impartial trial. He had not heard any of the evidence, and had formed no decided opinion; though his impression was, from the rumours he had heard, that if they were true, she was guilty, and ought to be punished. The Court not being advised what judgment to render on the motion for a new trial, adjourned that question to the General Court, as one of novelty and difficulty. *If this objection had been made to the juror before he was sworn, it should have been overruled. It did not appear that the juror had formed a decided opinion on the guilt or innocence of the accused. He had heard the rumours of the country, and concluded that if they were true, the prisoner was guilty. This was certainly a hypothetical opinion; and such as should not disqualify a person from serving on a jury in a criminal case. The case now under consideration resembles the cases heretofore decided in this Court, of Munford Smith v. The Commonwealth, 2 Va. Cas. 6, and Thomas Kennedy v. The Commonwealth, 2 Va. Cas. 510; each of which was much stronger in favour of the prisoner than this case is. Smith had been convicted of murder in the second degree, and sentenced to the penitentiary for 10 years. He had moved for a new trial, on the ground that James Bryan, one of his jury, had, before the trial, expressed himself unfavourably to the prisoner, but of which he was ignorant until after the trial was over. This juror in speaking of the prisoner had said, “Damn him, he ought to be hung.” The General Court, regarding it not as a deliberate opinion, but such an expression as any unprejudiced mind might hastily make on hearing of the commission of a murder, refused to award a writ of error. Kenned}' was a school-master, and had been convicted of a rape committed in his schoolhouse on one of his pupils, a girl about 12 years of age; and sentenced to the penitentiary for 10 years. He also moved for a new trial, because John Embrj', one of his jurors, was committed in his opinion before the trial. It appeared from the affidavit of Richard Robinson, that half an hour before the Court sat he heard Embry say, “That Kennedy was doomed to the penitentiary. That he would go to the penitentiary if even he attempted to commit a rape.” The motion for a new trial was overruled, and this opinion was sustained by the General Court. The General Court ^thought the opinion expressed by the juror was only an opinion as to what a jury might probably do in such a case, considering the nature of the offence, and the aggravated circumstances under which it had been perpetrated. In the case before us, Graves had sworn that he had formed no opinion for or against the jjris-oner. He was nevertheless challenged by the prisoner. Now we have often witnessed in criminal trials, when a juror came forward and stated on oath that he had formed -no opinion in the case, and he was notwithstanding challenged peremptorily by the prisoner, without cause, and rejected, exhibit in his countenance great embarrassment, confusion and mortification, to the no little amusement of the bystanders. In this state of feeling, they often give way to expressions from the mere impulse of the moment, which, under other circumstances, would indicate hostility, prejudice, or the formation of an opinion against the accused ; but which, in reality, have no just foundation to rest upon. Of this character, the expression ascribed to Graves may well be supposed to be; and as furnishing no good cause for a new trial. A majority of the Court is of opinion, that the motion for a new trial ought to be overruled; which is ordered to be certified.

DUNCAN, CEOPTON, and ROBERTSON, J., dissented. Motion for new trial overruled.  