The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-02-26
yond all reasonable doubt that the prid-
onor was not injured by tho irrcgularlty
or misconduct.

a..
mat justice has been dono, and It is sald thSt In
applying THIS rule tho court regards with oHtrotne
Jealousy all attempts TO set aside verdlcts Oh the
etoanu OF objections to Jurors ox!s.ing before
they wore sworn. and that verdict Will not DO
disturbed for any such causp unless Il appears
70 have operated 30 as TO inalct Injustice upon
the prisoner. III n,
The court farther Snys, II Is tho duty Of tho
court 70 SEQ that the, prisoner has trial BY an
impartial Jury. and unless the court wni satisfied
with al thu! appeared before II that tho prison.
or had such n trial. II was tho duty OF tho court
TO set inside the verdict
Inc court In tho caGc OF tho state vs. Greer, I'D
W. Va, ~, quoting from tho case OF the CON,
monweAlih vs.. Flanagan, Watts mud g.. ilb,
says The expression Of oil opinion By q Juror
with regard TO tho guilt or Innocence OF II dc.
iendant before he. tho Juror. Is called to the
box, Is good cAuSo Of challenge, but Rftor trial
y ,s Is MOI snihc!cnt cause for granting a now
his mind unopon 10 conviction, II would DO q
good cause 10 sot tho verdict aside. PreJudgIny
and giving an opinion are very different things.
inc nIss implies strong. disposition to favor tho
ono sldo OF the other, determination to find In
ono way, lot the evidence DO what It may The
last Involves the truth OF certain facts and prop
osltons In tho sentiments delivered, and the
impression thus made may DO ellaced by tho
production OF other evidence, Tho first I'm.
piles charge oil gross mlsbehavlor on tho part
Of n Juror who consents to serve on u Jury when
ho must know no has precluded himself from
forming Just Judgment by republication OF
the case, determination to decide right or
wrong IN particular way. The second, that
which Is natural to the human mind, to form
and even 70 express an opinion on a supposed
state Of facts, IN oplnion only binding or In.
iuencins them provided tho case should turn
out as has been represented.
In Virginia and in this state, It has
been repeatedly hold that q new trial
will not DO granted in criminal case
for q matter that is principal cause OF
challenge to q Juror which existed be.
toro he was elected and sworn as such
juror, but which was unknown to tho
prisoner until aftor verdict; and which
could not have been discovered before
tho Juror was SO sworn, by the exercise
OF ordinary diligence, unless it appears
that tho prisoner suffered injustice from
the TACT that such juror served upon the
case.
The court in constituting the language
unless 1t appeurs that tho prisoner SUI
iered injustice from the TACT that such
juror served upon the case" says: 1t
certainly cannot mean that the court is
to look into the evidence against the
prisoner on the issue tried in the case,
because it would DO impossible to ascer-
tain in that way whether he had suffer-
ed injustice. NJ
The plain meaning OF the language is,
that the trial court, upon motion for
Q now trial on such ground, will look
into the ailidavits or othcr evidence Of
tered to sustain tho motion, and from
Thorn determine whether tho Juror who
had before the trial expressed his OPT
Mon as to the guilt Of tho accused, had
merely expressed such opinion from o
partial knowledge OF the case, and
whose mind was unbiased, so that no
could impastially try the accused upon
tho charge, or whether no had pre-
judged the case, and was determined to
find him guilty. without regard to evil
dence.
And, II from such aifidavlts and other
evidence it appears on the motion for
now trial that juror had prcjudged
tho case and had not merely expressed
m opinion which might be changed by
evidence, it would be assumed that the
prisoner was injured, and it would bo
the duty OF the court to set aside tho
verdict and grant new trial for that
cause. If it appeared from the afidavits
and othor. evidence to the satisfaction OF
the court that the expressions OF opin-
ion were such that the juror might
readily have forgotten, then tho court
would regard it as n mere opinion and
not procurement, and that when the
juror on his voir dire declared he had
expressed no opinion as to the guilt or
innocence Of the accused, he did not
swear falsely, but had forgotten that he
had expressed such opinion; but if on
the other hand it appeared that decided
opinions had been expressed by him as
to the guilt OF the accused go recently
and decidedly as 10 convince the court
that for the purpose Of being member
Of the jury he denied on oath that no
had expressed any opinion as to tho
guilt OF the accused; thon it Is clear that
he had preiudgcd tho case, and OF
course the prisoner was injured by his
being on the jury.
The State had charge OF the prisoner
and it was its duty under the law to see
that he had fair and impartial trial
and so far as practicable, by the most
guarded caution, to allow no suspicion
of unfairneas; and in cases of miscon-
duct Of jurors after they are sworn. tho
law, as we have heretofore said, casts
the burden OF removing all suspicion OF
unfairness on the State, which suspicion
must be removed to the entire satistac-
ton OF the Court, Or beyond reason
able doubt.
In State vs.. Cartwright, 10Th W. Va. page ~,
the court says;
In criminal cases the temptation offered 10
conduct is very great. II they admit misconduct
they are liable to censuro and perhaps TO be
fined. Consequently they ere more likely TO
deny than 10 admit that their verdict was infu.
enced by any mlsconduc; or improperly. II
they are men Of Integrity and character their
conduct will be such ns not 10 require any ex-
culpation, and II they are not such the prisoner
has little protection In relying on their con-
sciences to uccusG themselves.
The rulo which denies the admlssibilty OF
tho evidence OF Jurors to impeach their verdict
and allows such evidence to support It neccssari.
ly operates 10 the prejudice Of the accused and
tends 10 Violate tho most sacred obligation OF tho
state. TO see that the life and liberty OF hcr cil-
ZenS arc secured, and that every reasonable pre-
sumption shall be in favor Of the innocence OF
the accused.
Both reason and the theory OF crlmi-
nal proceedings nathis country would
secm to require that the testimony of
jurors should not be admitted either to
impeach or support their verdict. That
the authorities in Virginia have not
carried the doctrine OF exclusion to this
extont is conceded, and whilo we feel
bound by the decisions OF that state as
they were when this state was formed
VIC are not willing to extend what VIC
do not regard as an entirely satisfactory
doctrine. There does not seem to be
any established rule in Virginia, but
the practice has been to allow Jurors
to testify against charges or suspicious
OF irrnrnl In ritv mud mishnn n,,inr