The opinion
FUBMAN, PRESIDING Judge
(concurring). The record shows that John McKinney sat as a juror in this case, and that upon his examination as such juror, among other things, he said from what he had heard he had an opinion as to the guilt of the defendant, and that he did not believe that lie could give the defendant the same fair and impartial trial as if he had not heard anything about the case. The juror was then asked: “In your present frame of mind, from what you have heard, you could convict the defendant on less evidence than if you had not heard anything?” Objection being made, the juror was not permitted to answer this question. In answer to questions asked by the county attorney, the juror stated that he had never talked to ’a witness in the case, that his opinion was based upon rumor, and that if taken upon the jury he could and would give the defendant a fair and impartial trial notwithstanding this opinion, and would be governed alone in making up his verdict by the testimony of the witnesses on the stand and the charge of the court. Thereupon the court overruled the challenge of the defendant, and the juror was sworn in the cause over the protest and exception of the defendant.
When a juror states that he had an opinion as to the guilt of a defendant, he is not made competent to sit in the case merely because he may state that he can and will lay this opinion aside if taken on the jury, and give the defendant a fair and impartial trial, and be governed alone in making up his verdict by the tes
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timony of the witnesses and the charge of the court. The juror is not the judge of his own competency, of his own impartiality,- and of his own freedom from prejudice. No statute Can clothe him with such judicial discretion and power. The competency of the juror is left to the discretion of the court, and the'presiding judge is not bound by the answers of the juror. It is the judge and not the juror who is charged with the duty of passing upon the competency of the juror, and in the discharge of this duty the judge may hare recourse to any means of information within his power. In fact he should carefully investigate every source which would be calculated to throw any light upon the' competency of a juror, and if the judge is not entirely satisfied of the competency of the juror, he should be excused. In
Johnson v. State,
1 Okla. Cr. 348 , 97 Pac. 1070 , this court said:
'“The question of the competency of jurors is addressed to the sound discretion of the trial court, and, in the absence of an abuse of that discretion, it is not subject to review; in other words, while the trial court must be clearly satisfied that a juror is fair and impartial before permitting him to sit in a criminal case, yet upon appeal to this court it must be clearly shown that the trial court abused its discretion before this court will review its rulings in this respect.”
We think it clear that the trial court erred in two particulars in passing upon the competency of the juror McKinney: First, this juror frankly stated that on account of what he had heard he did not think that he could give the defendant the same fair and impartial trial as if he had not heard anything. This was stating, in effect, that the juror believed that the opinion which he then entertained would influence his action in finding a verdict; that it might combat the evidence of the witnesses and resist its force. It is the nature of the opinion, and not the source from which it is derived, that we are considering. We do not claim that any impression which a juror may have as to the guilt of a defendant will necessarily disqualify the juror, but we do say that, when the juror is shown to have an opinion as to the guilt of the defendant, it matters not from what source it comes, then the burden is on the state to show that this opinion is such that
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it does not affect the fairness and impartiality of the juror. This is the' letter and the spirit of our statute." Section 5475, Wilson’s Rev. & Ann. St. Okla. 1903, is as follows:
“In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section, must be alleged, but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court.”
So it is seen that according to the statute it is the court and not the juror who must be satisfied as to the fairness and impartiality of the juror, and that the judge is not bound by the answers of the juror, but may inform himself “otherwise.” But even if this were not the statute, it is the plain meaning and intent of our Constitution, and as such it is our first duty to enforce it.
The juror McKinney, just after having expressed the opinion that lie did not think that he could give the defendant the same fair and impartial trial that he could give him if he had never heard anything about the case, did, in answer to the question of the county attorney, state that if taken on the jury he could and would lay his opinion aside, and be governed as a juror alone by the testimony of the witnesses and the charge of the court. This shows that the juror was himself uncertain as to his mental condition, and was varying as to what his action would be if taken on the jury, and, of itself, should have caused the trial court to sustain the challenge for cause.
Second, counsel for the defendant asked the juror this question: “In your present frame of mind, with what you have heard, you could convict the defendant on less evidence than if you had.not heard anything?” The court erred in not permitting this question to be answered. While it is true that the court
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would not be bound by the answers of the juror, yet, when it is disclosed that a juror has an opinion, in all fairness the court should permit the most searching cross-examination of the juror as to the origin, extent, and probable effect of such opinion. This is especially true in capital cases. The graver the case and the more severe the punishment liable to be inflicted, the more cautious the court should be in safeguarding all of the substantial rights of a defendant. But it may be said that the defendant is guilty, and that therefore it is immaterial as to whether the law was complied with. Such a statement as this is the first step toward lynch law, and if recognized by this court, would wipe out and destroy every constitutional right, and would establish a precedent which, if followed, would result in arbitrary punishment in the name of the law; a consummation dangerous to liberty and innocence, and utterly inconsistent with the perpetuity of our free institutions. We heartily assent to the proposition that when • a defendant has been properly indicted and fairly tried, and the evidence clearly shows that he is guilty, then a conviction should not be set aside on account of any mere matter of form or any exception which did not deprive the defendant of a substantial right. We have uniformly recognized and adhered to this rule, as our decisions will conclusively show. But it is an utter misapprehension of the doctrine of harmless error to suppose that when a defendant has been deprived of a substantial right, the error was or could be harmless. If this was correct, then the doctrine itself would become a mighty engine of wrong and oppression; in fact it would be the entering wédge of anarchy, for it would result in the destruction of all law, and substitute in its place the arbitrary will of the judges and jurors.
Section 5618, Wilson’s Rev. & Ann. St. Okla. 1903, is as follows :
“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
'This forbids this court from reversing a conviction upon any technicality or exception which did not affect the substantial
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rights of the defendant. This is the doctrine of harmless error in a nutshell. The converse of this statutory provision is that we must reverse convictions when the defendant has been deprived of a substantial right.
The court instructed the jury as follows:
“In connection with the evidence in this case, you are instructed that a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the oifense, and the corroboration is not sufficient if it merely shows that commission of the oifense or the circumstances thereof; that is, in this case, you cannot convict the defendant, Dan Scribner, upon the uncorroborated testimony of the witness Ed Johnson, for the reason that the evidence shows him to be an accomplice. However, if you are satisfied that the witness Ed Johnson speaks the truth in some material parts of his testimony in which you see him corroborated or confirmed by other unimpeachable evidence, this may be ground for your believing that he also speaks the truth in other parts of his testimony in which there may be no confirmation, but this corroboration ought to be as to some fact which tends to connect the defendant with the commission of the oifense.”
The vice of this instruction lies in the fact that the court tells the jury that the corroboration of the accomplice ought to be as to some fact which tends to connect the defendant with the» commission of the offense. The law prohibits a jury from convicting a defendant upon the testimony of an accomplice, unless such testimony is corroborated by other testimony which tends to connect the defendant, with the oifense committed. The law is mandatory. This instruction is only advisory, and qualifies and is contradictory of the first portion of the instruction, which correctly states the law. When this is the case, no one can tell upon what portion of the instruction the jury acted in finding their verdict. Such instructions are universally condemned, both upon principle and by the authorities, without a single exception, so far as our investigations have gone.
For the reasons above given, I concur in the opinion that the judgment against the defendant should he reversed. While it is
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of great importance that every guilty man should be speedily brought to justice and punished for his crime, yet it is of still greater importance that the citizens of Oklahoma should know that the courts of the state will secure to each and every one of them, it matters not how poor, friendless, and unpopular he may be, the full protection afforded by each substantial privilege and right guaranteed to them by the Constitution and laws of the state. This court will discharge its full duty in this respect, without partiality, fear, or favor, let it please or displease whomsoever it may.
The judgment against the defendant is therefore reversed, and the cause remanded, with directions that a new trial be granted the defendant.