Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-02-26
THE COURTS OPINION.
CONTINUED from Sirih Page

The second. that which l. natural 20 the human
mind. TO foFIa and even 90 express an opinion
on a supposed statr OF fIcts-an opinion only
binding or influencing them provided me case
should turn oUt rs has been represented.
In Virginia and this State Il has been re-
peatedly held a new trial Will not DC grant
ed in "a criminal case. for matter that IS
principal cause Of challenge 10 juror,
which existed before he was elected aga
sworn as such Juror, but which was IN
known 20 the prisoner until after the YER
dict, and which could not have been dis
covered before tue Juror was so sworn oy
the exercise OF ordinary iligence-unless
il appears that the prisoner suffered inlus-
tice from the fact that such Juror served
upon the case.
The Court, in constituting the language,
sunless iJ appears that the prisoner suffer
ed Injustice from the fact tEat such Juror
served upon the case says:
'.It certainly cannot mean that the Court Is
% look into the evidence against tae prisoner
ca tlc issue trlsd ia the case, because u would
Z, lul possible % ascertain IN t.uE way Nhr-A-
er Il had suffered injustice
Tie plain meaning OF the language IS,
that the trial Court, upon motion Tor new
Trial on Sucl ground, VIII look into the al
hdayits or other evidence offered 10 suS-
Iaia the motion, and from them determine
whether the juror who mad, before tue
trial, expressed his opinion as % the guilt
Of lie accused, had merely expressed such
opinion from partial knowledge or the
case, and whose mind was unbiased so that
lie could impartialiy try the accused upon
tae charge, or whether he had preludged
the case and was determined 20 IND nlm
guilty without regard TO the evidence. And
II from such aft1avi,S or other evidence IL
appears. on the motion FOR new trial, that
q Juror had preluGgCd the case. and had
not merely expressed an opinion when
might be changed 0y evidence, u would be
assumed that the prisoner was injured,
and 10 would be the duty %!
the Court tO set aside the verdict,
and grant q neE tIiu. !Or This cause. II II
appeared trOrI the aftidavltS and other
evidence, 90 the satisfaction OF the Court,
thai tue expressions Of opinion were such
thai The Juror might readily have forgot
ten, then the Court would regard II as a
mere opinion, aud cOL preludsment, ana
1uat. when the Juror on his CoT dire de-
Clarel he had expressed no opinion as 10
the guilt or innocence Of the accused, he
did not swear falsely, out had forgotten
that he mad expressed such opinion; but II,
Oh the other hand, u appeared that de-
cided opinions had been expressed by MIN
as % the guilt OF the accused, 50 recently
and decidedly as % convince the Court that
for the purpose OF being a member o. the
Jury he denied on oath that he had eX-
pressed any opinion as 20 the gullt OF the
accUseu-thcn il is clear thai he preiUdged
the case, ana Of course the prisoner was In
lured by his being on the jury.
The State had charge OF the prisoner,
and il was its duty under the law, 70 see
that he had fair and impartial trial, ana
so far as practicable by the most guarded
caution 20 allow no suspicion OF unfalrncSS,
and in cases Of Misconduct OF Jurors after
they are sworn, the law, as we have here
tCf0re said, casts the burden Of removing
all suspicion Of UufaIrnesS upon the State.
which suspicion must be removed TO the
entire satisfaction Of the Court, or beyond
a reasonable DOUBT.
Court says
..Iu criminal cases the temptation offered to
Jurors % explain or excuse Irregularities In their
conduct Is very great. IN loey ADMIT mlScon-
oUc', they are liable 20 ceusurc, and perhaps %
b. lined. Consequently they are m1se lISyly 10
deny than 10 ADMIT 'hat their verdict was To-
huruced by any misconduct or improperly.
n they are men OF integrity and character,
their conduct Will be such as not % require any
sAcuipatiou, aud " they are not such, the priS-
ores al, lt'lr protection iu relying upon taelr
conscience, Co accuse themselves.
The rule which denies the sdmisslbihty OF
the evidence 90 Jurors % .mpe3ch their verdict
and allows such evidence support 10, necsS-
sarily operates 90 tue prejudice OF the accused,
and ENDS Go violate the most sacred obligation
OF The state, o. see that the lie and liberty o.
her citizens are secured, and that every reason
able pies umptpn shall De IN FAVOR cl the lnuO-
cence % the. accused. Both reason and the
theory or criminal proceedings IN TINS country
would seem lC require tnat the testimony OF
Jurors should no, be admitted either % lmpeSch
or 90 support their verdict. That the author
tiles lu NIrEluia have not carried the doc
lriue OF exclusion 90 this extreme, Is con-
Cedri. and while We feel bound 10y the decisions
OF that state as they were when this State was
formed, We afr not willing % extend what We
DO not regard 90 an entirely satisfactory doc
trIUe. There does not seem % be any eStao-
tishsG EGl- Doc Virginia uIs thr Practice mas
been 20 allow jurors 70 testify against chsrgsS
or suspicious uf irrrEuiarity and misbehayior
preferred against them ry third persons or out
side parties, tending % show the iny1lidlty Of
their yrItiCt. But eTec'N what weight should
be given 20 theig testimony, and under what
circumstances DO Is admissible, d, not defined,
a. each case seems o. have been governed by
the especial fact, upon which q was decided.
10 Is however. admitted m all the cases in
which che testimony 90 jurors Is received, that
10 ought 90 be heard with very great caution.
And we tlln6, as a general ru4c, where the evil
dcucc Ds jurors is admissible, 70 ought % bee "
ceiyed with very great caution, and, except IN
es lerlai cases, % ought 20 b" admitted geuer-
ally only Iu support OF their verdict IN cases
where facts We're brought TO the attention or
the Court regarding the conduct OF the jury or
one o. more OF its members which Eriyi- ylcig
yltiales their yerJlcts.
Now, let US make application Of the law,
in so far as II is applicable 70 the facts in
this case.
First. as % the Juror Schmidt, the con-
versatiOus with him and statements attriO-
uted 70 him were made on the very day OF
the homicide, and shortly after il. As 10
the statement Of Mr.. Bruhn, who swearS TO
what Schmidt said in BehrenS' store, on
the GAY Of the homicide, I think il should be
considered as modified aud contradictory the
affidavit Schmidt himself makes in this
case. / think there was misUnderstand-
ing on the part OF Mr. Bruhn as 10 what
Schmidt said, and the other affidavit Of
Mr.. Simms was entirely TOO general and
indefinite IN lis statements. Even II both
afidavits were true, they DO not show that
Schmidt had formed a nXed opinion, or that
he had preiudgeO the case, and was biased
or ureiudiCed, ana that when he answered
on his r1jr dire that he could not say wheth-
er or not he had fOrCCd or expressed an
opinion, out II he had il was not strict
opiniou-that he would decide from the
evidence alOne-he answered truthfuliy,
and wac O competent and qualified juror.
As % the juror Evans, admitting the
truth OF Russels affidavit, it shows that
the opinion was not fixed opinion, and
certainly Ina the light Of the cross eNamiua-
tiol OF Mrs. Frances Martin, his affidavit
should be received with a great deal Of
caution, and the positive statement Of
Evans, as against her statement, should
doubtless be accepted. / thing that under
the rule laid down, in the light OF the de-
cision OF our Supreme Court Of Appeals,
cited. as well as all the leading Virginia
cases, that even If 10 is admitted that the
opinions expressed by Schmidt and Evans
were so expressed by them, "a fact they
fully deny they were not positive opinions
or pre5udgmeutS. and in no sense dlQualify
them as jurors.
And applying the same rule to the state
rnents IN legged 10 oe made by Juror Robin
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