The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-03-13
SUPREME COURT DECISIONS.
Reported Weekly by j. w. Jenkins.
Attorney at Law.

ISAAC BROWN
| VS..
THE STATE.
Error to the Circuit Court of Lincoll
county, Hon. j. B. Chrisman, Judge.
Plaintiff in error was indicted for per.
jury, charged to have been committed OF
the trial of an Indictment for arson agains
one Samuel Williams. The testimony al
legged to be false was to the effect that sale
Williams was at the house of Brown at 7:3t
o'clock on the night preceding the burning
there went to bed with him and slept will
him till the next morning ut O'Clock wheI
they were awakened by an alarm given o
the fire. The plaintiff in error, was con
victed and sentenced to the Penitentiary
for ten years, and from this judgment hi
sued out writ of error. There are severa
assignments of error, which will appear il
the opinion.
A. c. McNalr for plaintiff in error.
7. c. Catchings, Attorney General, fol
the State.
GEORGE, C. j.,
| Held ...
1. When the jury was being empanelled
one Mason was examined by the Court
| touching his qualifications as juror, when
he stated that he had not formed or express
ed any opinion as to the guilt or innocence
of the prisoner, but had formed u decided
and fixed opinion as to the guilt or innO-
cence of Samuel Brown, on whose trial for
arson the perjury was charged to have been
cd nha Mnc
as a juror for cause, but the challenge was
Overruled. 1t is insisted by the State that
this ruling was correct; and that if it is
not, the prisoner cannot complain, as he
could have excluded Mason from the jury
by peremptory challenge, and it does not
appear that his peremptory challenges were
exhausted before the complete empannel-
ing of the jury. A juror should be omni
exceptions maj or and entirely exempt from
every influence calculated to produce the
slightest bias towards either party, and
with no motive to find verdict for one or
the other save a sense of duty and justice.
The jury are sworn to decide the issue ac-
cording to the evidence before them. 1t is
expected that the oath shall be observed
and this duty performed. This cannot be
if juror has a fixed and settled opinion
on the subject matter in controversy. If
the testimony of the prisoner, on which
perjury is assigned, is true, it is impossible
that Williams could be guilty. A conclu-
sion in the mind of the juror that Williams
was guilty, therefore, necessarily involved
belief that the testimony of the prisoner
on the subject of the alibi was false. 1t
being false did not necessarily make Brown
guilty, for he could still make the defense
that it was not wilfully and cOrruptly false.
1t is impossible to lay down any precise
general rule on the subject. The most we
can do, is to decide particular cases as they
arise and in doing this, whenever we de-
eide that fact as to the existence of which
the juror has clear and settled conviction
and opinion, is SO connected with the main
fact in issue, that it is difficult to disbelieve
the co-eXistence of the main fact which is
usually associated with the fact believed,
we will hold the juror incompetent.
2. A. Krauss was presented as juror
When asked if he was householder, he re-
piled that he was merchant, doing bust
ness in rented store house, in which he
slept, and that he was unmarried, without
family and was boarding. Defendant
objected to him on the ground that he was
not householder, but this objection was
Overruled. The objection should have been
sustained. The fact that he had rented
store and slept in it, did not constitute him
q householder.
3. 1t is urged that the prisoner should
have resorted to his peremptOry chal-
lenges, which are not shown to have
beeen exhausted, and thus prevented these
jurors from being sworn as such. 1t
is true that if the prisoner had resOrted to
his peremptory challenges, and excluded
these jurors, that the mere erroneous
opinion of the judge holding them to be |
would not have been per Sc
error emitting him to new trial. The |
error must be shown to have been preiudi- |
cial to him before he can claim a reversal, |
The prejudice would have been shown if |
he had challenged peremptorily, and it had |
that before the jury was fully |
completed and empaneled, the prisoner |
had exhausted his peremptory challen-
ges. But when the prisoner chooses |
not to exercise his right of peremp-
tory challengs, and the incompetent juror |,
under an erroneous ruling of the Judge, is |
actually sworn, and acts as Juror. The
question presented is a very difficult one.
In this case, the prisoner, notwithstanding
his objections, has not had trial by an i'm
partial jury. Nor is he obliged, in order
10 get rid OF an incompetent juror, held COM
petent by. the Court, to resort to his peremp-
,ory challenges. He has the right to have the
of juror challenged by him
rightly decided by the Court and to have
him set aside, if ne is incompetent.
4. 1t is next assigned for error that the
Court permitted witnesses Eugene and
eNeIal Oluefs 10 testify tnat the prisoner 1
vas at Eugene's store in BrOOkhayen from
bout 1870 to IL O'Clock of the night on which
he fire occurred. 1t is urged that, as the
Ire occurred at 4 o'clock in the morning.
o much Of the testimony of the prisoner
: shows the whereabouts of Williams in
he same town at time which would still
cave to him the opportunity to 20 to the
ouse and set it on fire Is immateriaI
nd hence, that the testimony of Eugene
nd others objected to was improper he
ause it tended only to disprOye SO much Of
he testimony Of the prisoner as was iInma-
erial. We do not consider this position
Ound.
) 1t is next insisted that il was error 70
ermit the witnesses Taylor and Others TO i
sstify as TO the declarations made by VIII I
ans, which tended to criminate him as ,
be author Of the burning. Some Of these /
eclaratiOns consisted Of direct threats tn !
urn the house, and some Of threats. to AZ l
NTH (the owner Of the housed an injury c
] made before the burning, and In The /
bsence Of Brown. One Of these witnesses {