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and, although the trial court allowed ant to exercise more intelligently counsel to interrogate the jurors as his peremptory challenge. Says the to their membership in an organiza- court: “This (right to interrogate tion for the purpose of punishing 'veniremen) must, of course, within crimes against women, this did not in reasonable limits, be determined unany wise accomplish the purpose the der the facts of the particular case counsel for the accused sought in ask- by the trial judge. His discretion ing the question as to membership, in in the matter, however, has limitathe Ku Klux Klan, which question tions, and, when abused, will be corwas not allowed to be asked by the rected upon appeal.

Upon the trial court.

facts revealed by the bill of excepIn Benson v. State (1923) Tex. tions in the instant case, it is conCrim. Rep. 254 S. W. 793, the ceived that the inquiry proposed was court held that a negro defendant in a proper one. The information which a criminal prosecution should have was called for was certainly calcubeen allowed to ask a juror if he was lated to have enabled appellant to a member of the Ku Klux Klan, intelligently exercise his peremptory and the failure of the trial court to challenges. We fail to discern anyallow such inquiry abridged the right thing in its nature that would give secured to the defendant by statute the court the discretion to deny the to interrogate the veniremen on their privilege of propounding the quesvoir dire examination, and ascertain tions." from them "facts which would facili- The trial court erred in refusing tate the exercise of peremptory chal- to allow the accused to inquire of lenge in an intelligent manner; and veniremen on their voir dire wheththe trial court's error in this partic- er they belonged to an organization ular was not cured, although the jury known as the Ku Klux Klan, counsel stated that they belonged to no secret for the accused stating that it was organization whose obligation would highly important to the latter to in any way interfere with or influence ascertain whether the jurors belonged them against the appellant." The to such an organization, in order court says: “A peremptory challenge that he might more intelligently exeras defined by statute 'is one made to cise his peremptory challenges, and a juror without assigning any reason stating that he believed the informatherefor. If the privilege hus con- tion desired to be important (Belcher ferred is arbitrarily denied, the right v. State (1924) Tex. Crim. Rep. -, to a fair trial is abridged. ... The 257 S. W. 1097), and the inquiry right to exercise peremptory chal- that the trial court proposed, namely, lenges would be empty, if one might that the juror might be questioned as be arbitrarily denied the privilege of to whether he belonged to any orexamination upon voir dire."

ganization which would influence him, It was held in Reich v. State (1923) would not be an adequate substitution 94 Tex. Crim. Rep. 449, 251 S. W. for the information desired by the ac1072, in a prosecution for manufactur- cused. ing intoxicating liquor, that the de- But in Snyder v. State (1923) 160 fendant's counsel had a right to ques- Ark. 93, 254 S. W. 381, the court held tion veniremen on their voir dire as that it was not error for the trial to whether they were members of the court to refuse to allow the defendant Ku Klux Klan, where, according to in a murder case, in order for her to counsel's information, criminal cases decide whether to reject the juror had been discussed by members of peremptorily, to inquire of each of that organization, and speeches had them on their voir dire examination been made in their lodge rooms in- as to their membership in the Ku Klux sisting upon convictions in such cases, Klan, an organization to which the the court being of the opinion that court and other court attachés were the questions should have been al- supposed to belong, and to which the lowed in order to enable the defend accused, by reason of her sex, could not belong; the court holding that, dents. If such is the law, the right of in the absence of any showing that the peremptory challenge may prove a organization to which the officials snare, and, at best, is of no earthly were supposed to belong, or the mem- value to the accused.” bers thereof, were antagonistic to In Reg. v. Nicholson (1839) 8 Dowl. the accused, or to some organization to P. C. (Eng.) 422, 4 Jur. 558, where a which she belonged, such inquiries prosecution had been instituted by the would not be allowed.

Society for the Suppression of Vice,

the court held that the defendant 11. Membership in societies for the sup

"should know the names of persons pression of crime.

constituting the society, so that none a. Generally.

of them may be on the jury." The court held in Connors v. United It was held in Reg. v. Stewart States (1895) 158 U. S. 408, 39 L. ed. (1845) 1 Cox, C. C. (Eng.) 174, that 1033, 15 Sup. Ct. Rep. 951, that ques- counsel would not be allowed to questions to a juror in a criminal prosecu

tion jurors as to their membership tion, as to whether he was a member in an organization for the suppression of the "Committee of One Hundred," of crime, although the inquiry was were properly excluded in the absence necessary in order effectively to exerof any showing that that committee cise the right of challenge. was in fact assisting in the prosecution of defendant and supplying the

b. Societies for the enforcement of in

toxicating liquor laws. government with information to convict him of the crime charged.

Membership in the Law and Order In State v. Mann (1884) 83 Mo. League or the Antisaloon League 589, it was held that the trial court does not necessarily disqualify a man erred in refusing to allow the defend- to sit as a juror in a prosecution for ant in a prosecution for murder, to violation of the National Prohibition ask the jurors if they belonged to any

Act, holds the court in Remus v. organization or association having for United States (1923) 291 Fed. 501, its purpose the prosecution of crimi- unless the criminal cause

on trial nal cases, including the one at bar, is being prosecuted by a local associaas the inquiry would have enabled tion of which he is a member, or the defendant to exercise judiciously said juror has contributed funds in his right of peremptory challenge.

furtherance of such prosecution, or is "One may not be incompetent as

liable to assessment for the expenses juror, and yet may stand in such of the prosecution. The court says: relations to the prosecutor, or the

"As opposed to the contention of cause, as, if known to the accused, plaintiff in error, there is a long line would be deemed a good reason for of authorities to the effect that memperemptorily challenging him. He is bership in a society, such as the Law entitled to an impartial jury, and may and Order League or the Antisaloon make such inquiries as will enable League, does not per se render the him to secure that constitutional juror incompetent, where the proseright. Must he exercise his right of cution is in a different locality and peremptory challenge, without the in no way subject to the local society privilege of making inquiries, except of which the juror is a member. such as relate to the competency of In 16 R. C. L. pp. 277 et seq., $$ 94 the panel? In capital cases, the ac- 'to 96, the general rule is distinctly cused is imprisoned and is brought stated to be that the mere fact that from prison, and there for the first one is a member of an association time, possibly, meets the forty men for the detection and suppression of summoned as jurors in his case, and, crime, pays dues thereto, and is liable if blindly to make his peremptory chal- to assessment thereby, does not neceslenges, may strike from the panel the sarily disqualify him as a juror, in very men whom he would have wished the absence of a showing that the asto retain had he known their antece- 'sociation to which he belongs is in


Ark. —


some manner connected with or in- the arrest of accused operate as a terested in the prosecution of the ground for excluding from the jury particular case.

The text is sup- list members of the league otherported by a number of authorities.” wise qualified to serve as jurors. The In Corley v. State (1924)

court says:

“The purposes of the 257 S. W. 750, where the defendant league were identical with those was prosecuted for selling intoxicat- which the law imposes upon every ing liquors, the court held that citizen in respect to the matters withveniremen who were members of a in the purview of that organization. law and order league, and had made

All members of civilized contributions to the organization for society are in effect members of such the purpose of suppressing lawless- leagues. The fact that these two ness generally, but had made no con- jurors had contributed or promised to tributions for the purpose of prosecut- contribute to the funds of the league ing the defendant personally, were gave them no pecuniary interest in not disqualified to sit as jurors in the the result of that trial, for neither case.

the conviction nor the acquittal of the In State v. Estlinbaum (1891) 47 traverser would have restored the Kan. 291, 27 Pac. 996, where the de- contribution already paid, nor diminfendant was on trial for violation of ished the obligation to pay the promthe liquor laws, the court held that ised one." the trial court did not err in overrul- In Scott v. Chope (1891) 33 Neb. 41, ing defendant's challenge for cause 49 N. W. 940, in an action against of two jurors who were members certain saloon keepers for selling of an organization known the whisky to plaintiff's husband, which “Good Templars," whose object was resulted in his death, for which the not primarily the enforcement of the plaintiff sought damages, the court liquor laws under which the defend- held that the membership of one of ant was indicted, but was to "promote the jurors in a political society, which temperance among its own members had for its object the suppression of by moral suasion.” The court was the sale of intoxicating liquors was of the opinion that affiliation with not a ground of challenge for cause, such an organization did not show where it appeared, from the answers partiality, on the part of the jurors, to questions put to the juror, that he or that they could not try the case could give persons engaged in the impartially, or were in any manner whisky business as fair and impartial incompetent.

trial as those engaged in other busiIn the trial of accused for violation nesses, of a local option act, the court in Membership in the Antisaloon Guy V. State (1903) 96 Md. 692, 54 League is not a ground of challenge Atl. 879, held that two jurors who for cause of jurors in a prosecution were members of the Law and Order of defendant for selling spirituous liqLeague, whose principal object was uor, the jurors having taken no part the enforcement of the local option in prosecuting or aiding in the proseact, one of said jurors having con- cution of the defendant. State v. tributed to the funds of the league, Sultan (1906) 142 N. C. 569, 54 S. E. and the other having promised to 841, 9 Ann. Cas. 310. make such a contribution, were not In Deadweyler v. State (1909) 57 disqualified as jurors in the case, as Tex. Crim. Rep. 63, 121 S. W. 863, the they had not formed or expressed any court held, in a prosecution for violaopinion as to the guilt or innocence tion of the local option law, that of the accused, and the league of membership in the Law and Order which they were members had not .em- League, or Antisaloon League, the ployed counsel in the prosecution of purpose of which was to enforce the accused. Nor did the fact that de- local option law as well as other violatectives in the employ of the league tions of the law, was not a ground were chiefly instrumental in securing of disqualification of jurors sitting in


the case, in the absence of evidence that the court had no knowledge of that the officers had acted fraudulent. the obligations of the members of the ly in selecting the jurors.

aforesaid association, except what the Members of an association whose juror stated to be his understanding object was the prosecution of viola- of them. tions of the law against the manu- And in Com. Moore (1886) facture and sale of intoxicating 143 Mass. 136, 58 Am. Rep. 128, 9 liquors, the members of said organiza- N. E. 25, the court held that a memtion contributing funds for the pur- ber of a voluntary association formed pose of defraying the cost of such for the enforcement of the laws prosecutions, were held in Com. v. against the illegal sale of intoxicating O'Neil (1856) 6 Gray (Mass.) 343, liquors is incompetent to sit as a not to be legally incompetent to sit as juror in a prosecution for a violation jurors on the trial of defendant for a of the liquor laws, where it appears violation of the liquor laws, com- that the complaint was instituted by menced by an agent of the association, an agent of the association who was in the absence of any showing that furnished by the association with they (the jurors under consideration) money for his expenses and paid for were under any obligation, legal or his services, which consisted, in the honorary, to the prosecution of the instant case, of inducing the defendcase, and their subscription probably ant to violate the law in order to having been paid before the com- prosecute him for such violation. In mencement of the prosecution in the distinguishing this case from Com. instant case. The court was of the v. O'Neil and Com. v. Eagan (Mass.) opinion, however, that the judge, in

supra, after

referring to the inthe exercise of his discretion, might struction of the trial judge “that well set said jurors aside. The court persons employed to induce the deintimates that, if the subscriptions fendant and others to sell liquor for to the prosecution funds of the as- the purpose of prosecuting them sociation were not paid before the

should be regarded with great commencement of the prosecution in caution and distrust as witnesses," the instant case, the jurors would not the

court says:

“The complaint have been competent.

which the juror was to try was origiIn Com. v. Eagan (1855) 4 Gray nated by his agent, appointed for the (Mass.) 18, where the accused in a purpose of making such complaints. prosecution for selling spirituous and He could not be indifferent as to the intoxicating liquors objected to one result of that prosecution. He could of the jurors because of his member- not sit unbiased in determining the ship in a society whose object was the guilt or innocence of the defendant prosecution of liquor violations, and upon a complaint instituted by the the juror paid assessments to carry juror's authorized agent." The reaout the work of the society, the court sons stated in the question above said: “We deem it to be our duty, seem to have been the ground of dishowever, to say that, in our judgment, tinction between the instant case and the members of any association of the two Massachusetts cases menmen, combining for the purpose of en- tioned above. forcing or withstanding the execution A member of an organization known of a particular law, and binding them- as the "Home Protection Alliance," selves to contribute money for such the object of which was especially to purpose, cannot be held to be indif- prosecute parties charged with the ferent, and therefore ought not to unlawful sale of intoxicating liquors, be permitted to sit as jurors, in the and who was liable to be assessed for trial of a cause in which the question funds to carry on such prosecutions, is whether the defendant shall be was held to be incompetent to sit as found guilty of violating that law.", à juror in a trial of a defendant for A new trial was not granted in this violation of said liquor laws. State case, however, because of the fact v. Fullerton (1901) 90 Mo. App. 411. The court says: “It seems to us that in a prosecution for violation of the it would be establishing an exceed- liquor laws, to question certain of the ingly dangerous precedent to hold a jurors as to their membership in and member of an alliance of the kind to contribution to an association organwhich the juror belonged, to be a ized for the enforcement of the liquor competent juror under the circum

laws, with a view to a challenge for cumstances existing in this case. The cause on the ground of bias. The impartiality of a jury, made up in court was of the opinion that an afwhole or in part of persons sustaining firmative answer to these questions the relation to a prosecution that the would not have been a ground for juror did in this case, would, to say the rejecting the jurors, but did not rest least of it, be very questionable. As the decision on such a narrow ground, far as practicable, the courts, in the holding, on the other hand, that, in selection of jurors, should endeavor order to ascertain whether the jurors to secure those who are not only free, were biased, the judge himself might but who are not even subject to any examine or permit an examination of well-grounded suspicion, of any bias the jurors beyond the inquiries proor prejudice. Whatever the juror vided for in the statute, the matter may have thought or felt as to his of such examination being left to the competency, still he may, neverthe- sound judgment and judicial discreless, have been more or less biased tion of the judge. The defendant or prejudiced against the defendant would have been permitted to introand therefore not impartial."

duce evidence tending to show bias In Counts v. State (1916) 78 Tex. on the part of the jurors, after the Crim. Rep. 410, 181 S. W. 723, in a statutory questions had been proprosecution for selling intoxicating pounded. liquor in prohibition territory, a juror Where, in a criminal prosecution, who as a member of the Law and questions to jurors as to whether they Order League was obligated to aid belonged to an order known as the and assist in the prosecution of of- Law and Order Society, and if that fenders against the law, especially the society had not pledged itself to local option law, and to do all in his assist officers of the county in gatherpower to secure convictions in cases ing testimony in criminal cases and where persons were so charged, and raised money to aid in the prosecution had contributed and promised to con- of criminal cases, were held properly tribute money to bring about these excluded in Dodd v. State (1904) ends, was disqualified to sit as a juror Tex. Crim. Rep. –, 82 S. W. 510, in on the trial of accused.

the absence of any attempt to show A trial judge in a criminal prose- that any of the jurors, by contribucution is fully justified in refusing to tions or otherwise, had interested allow inquiries as to the membership themselves in the prosecution of the of the jurors in any association for instant case.

The court says: If, the purpose of enforcing the execu- as explained by the court, defendant tion of law under which expected to prove that said parties beindictment is found, when the counsel longed to an order to suppress crime seeking to have such inquiries made generally, but they had not interested expressly disclaims all knowledge of themselves in the particular case any such connection by the jurors, then on trial, had not expended any and assigns not a single fact or con- money or taken any interest in said sideration as affording a

case, then they were not incompetent cause for desiring to make the in- jurors." quiries. Com. v. Thrasher (1858) 11 But questions propounded by the Gray (Mass.) 55.

defendant in a prosecution for alIn Com. v. Burroughs (1887) 145 leged violation of the liquor laws, inMass. 242, 13 N. E. 884, the court held quiring of the jury if they were memthat the trial judge did not prr in re- bers of a temperance society or fusing to allow counsel for accused, connected with any league for prose





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