Lauderdale v. State

Sam Bobinson, Associate Justice, dissenting. There are three serious errors in this case, any one of which calls for a reversal of the judgment if the appellant is not to be denied a fair and impartial trial. And, regardless of the nature of the crime charged, or whether he is guilty or innocent, under our Constitution and laws he is entitled to be tried by a fair and impartial jury. Ark. Const, of 1874, Art. 2, §§ 7-10. Glasser v. U. S., 315 U. S. 60 , 86 L. Ed. 680 , 62 S. Ct. 457 .

The errors mentioned are: (1) The refusal of the trial court to declare a mistrial after learning that Chief Gann Nalley’s brother-in-law, Horace Illing, was a member of the jury; (2) the action of the trial court in refusing to allow defense counsel to question the veniremen on their voir dire examination as to their feelings with reference to integration or segregation of the races; (3) the action of the trial court in-refusing to permit counsel for the defendant to question the venireman Smith as to how he arrived at an opinion as to the guilt or innocence of the defendant after it developed on his examination in chief that he did have such an opinion as would require evidence to remove.

We will deal with the errors in the order named. Eirst, the refusal of the trial court to declare a mistrial after learning that a member of the jury was a brother-in-law to Chief of the Eire Department Nalley, whose automobile was destroyed with dynamite, which offense was so closely connected with the dynamiting of the school building that the two crimes constituted a part of the same transaction. The defendant was on trial for* having participated in the bombing of a school building at 8th and Louisiana Streets in Little Rock. A short time before the bombing of the school building, Fire Chief Gann Nalley’s automobile, furnished to him by the Fire Department, while parked at his home, was destroyed with dynamite. During the trial of the case the State was permitted to prove the bombing of Chief Nalley’s car. In these circumstances it cannot be said that Chief Nalley and his wife would have been qualified jurors. Undoubtedly by reason of their close connection with the.case, Nalley and his wife, Horace Illing’s sister, would have been disqualified. In fact, they were disqualified by statute. Ark. Stats., § 43-1920 provides: “A challenge, for implied bias may be taken: First. "Where the juror is related by consanguinity, or affinity, or stands in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or is a member of the family of defendant or of the person alleged to be injured by the offense charged, or, on whose complaint the prosecution was instituted.”

Here Chief Nalley..and his wife,- the juror’s sister,wére injured; at least in a nominal manner, by the offense proven in this case to convict the defendant. The dynamite was exploded. in their yard, blowing up an automobile in the possession-and control of Chief Nalley. Fortunately, he and his wife, the juror’s sister, were not in the car at the time.

On the motion for a change of venue, numerous newspaper articles were introduced in evidence, referring to the dynamiting of the car. It is stated in one of the local papers of September 12,1959: ‘ ‘ The charges accuse each of these three with two offenses: The dynamiting of Fire Chief Gann L. Nalley’s city-owned station wagon, at Nalley’s home Monday night, and the dynamiting of the Little Rock School Board office at Louisiana Street.” Another article of September 9th states: “The police and the F. B. I. continued checking at the other two scenes of the bombings, the Baldwin Company at 322 Gaines Street, which houses the business office of Mayor Werner O. Knoop, and the home of Fire Chief Gann L. Nalley at 5221 Base Line Road, where a city-owned station wagon was blown up.” An article of September 12th states: “Two charges were filed in circuit court against Lauderdale, Sims and Perry. They are accused of dynamiting Nalley’s car and the school administration building.” Another article of September 8th states that Lauderdale and Sims are charged with the school board building bombing at 800 Louisiana and the Fire Chief’s vehicle. It can be assumed that Nalley complained of the dynamiting of his car. Hence, not only were he and his wife the injured parties within the meaning of the above mentioned statute, but they must have been two of the complaining parties. It will be recalled, now, that the defendant was on trial for dynamiting the school building. The State was permitted to prove the dynamiting of Nalley’s car, and Nalley’s wife’s brother was on the jury.

Nalley and his wife were disqualified as jurors, and under the statute the wife’s brother, the juror Illing, was also disqualified. He was closely related by consanguinity and affinity to the injured and complaining parties. The fact that it was not shown that Nalley and his wife went to the prosecuting attorney and filed a complaint is immaterial. In the circumstances they would be considered complaining parties within the meaning of the statute even if they had asked that the cases be dismissed. But even if Nalley and his wife should not be regarded as parties in the case at bar, they are parties in a similar case that would disqualify them in the present case. The courts have always been zealous to protect a party’s right to a fair and impartial trial, and even where it was learned after a trial was completed that the trial judge was a distant relative of the wife of the deceased in a murder case, the defendant was granted a new trial on that ground alone. Byler v. State, 210 Ark. 790 , 197 S. W. 2d 748 . If the trial judge is disqualified in a situation of that kind, a juror would be even more disqualified. A juror has much more to do with whether a defendant is convicted than does a trial judge. In the Byler case it was held that the murdered man’s wife was a party to the case, and the trial judge was disqualified to try the case because he was her second cousin. Here the juror Illing’s sister, a much closer relationship than that of a second cousin, was one of the injured parties. Dynamite was exploded in her yard, thereby destroying an automobile and endangering her life, and this offense was proved in the trial as going to show the defendant’s guilt. In the Byler case Judge Frank Smith said: “He [the trial judge] never thought about the deceased sheriff being a relative of his wife, as they had no social relations and the deceased had not voted for him when he was elected to office. It may be said also that the judge presided not only with ability, but with absolute impartiality. It may be asked, therefore, what difference it makes that this relationship existed between the presiding judge and the sheriff? The answer is, ‘ ‘Twill be recorded for a precedent and many an error by the same example will rush into the State. It cannot be.’ ”

In 31 Am. Jur. 17 , it is said: “The right to a jury-trial embraces the right to a proper jury.” And in State v. Emery, 224 N.C. 581 , 31 S. E. 2d 858 , the court said: “It is clear, therefore, that the law not only guarantees the right of trial by jury, but also the right of trial by a proper jury.” In Hartford Bank v. Hart, 3 Day 491 , the court held that a juror who had married the sister of a party in another case, depending on the same principles as the one on trial, was properly excused from sitting on the jury, though his wife was then dead. In Ledford v. Georgia, 75 Ga. 856 , the court said: “The juror was disqualified, being a third cousin and within the ninth degree, which fact was unknown to the defendant and his counsel till after the trial . . . The principle on which the law rejects him is that he is not impartial; the same objection lies to his assertion that he was ignorant of the relationship at the time of the trial, after he had assisted in the conviction.”

Wright v. State, 12 Tex. App. 163, is closely in point with the case at bar. There the defendant was charged by separate indictments with stealing a number of horses belonging to different owners. There the court said: “Under these circumstances, although in the present case but one person is charged to have been injured by the commission of the offense charged in the indictment, we are of opinion that in the interest of a fair and impartial trial it was error for the court to hold a juror competent who was related within the prohibited degree to any of the persons injured by the offense against all, though the offense was charged by different indictments. In our opinion the defendant was deprived of a fair and impartial trial when there was forced upon him ... a son of an injured party and brother-in-law to another, in cases involving to some extent at least proof of the same facts necessary to the conviction of the defendant. ’ ’

There the situation was exactly as it is in the case at bar, and the court held that a brother-in-law was disqualified as a juror. The majority attempt to show that the Wright case has been impaired by the later decision of the Texas court in the case of Rogers v. State, 109 Tex. Cr. R. 88 , 3 S. W. 2d 455 . A reading of the Rogers case will show that the Wright decision has not been impaired to any extent whatever.

The juror Illing being disqualified, the next question which arises is, did the defense waive the disqualification by not discovering Illing’s relationship to the parties on the voir dire examination’? There was no waiver. True, defendant’s counsel did not ascertain on voir dire examination the relationship between Illing and the Nalleys, but of course Illing was fully conscious of the relationship and he knew that the defendant was charged with exploding dynamite in his sister’s yard and blowing up an automobile in possession of his brother-in-law. He should have volunteered the information. Regardless of how fair-minded Illing might be, it would be utterly impossible for him to be impartial in the circumstances, and the defendant was entitled to be tried by an impartial jury. We are not without precedent in a situation of this kind. We have two cases directly in point. In McDaniel v. State, 228 Ark. 1122 , 313 S. W. 2d 77 , this Court held that the trial court properly discharged a juror after the jury was sworn, because he was related to the defendant. Such relationship had not been discovered on the voir dire examination, and this Court did not indicate that the State waived such disqualification by reason of the failure to learn of the relationship earlier. The Court cited Harris v. State, 177 Ark. 186 , 6 S. W. 2d 34 , where it was held that the trial court properly discharged a juror after evidence had been introduced in the case because the juror was on the defendant’s bond. These cases show conclusively that the mere fact that the relationship was not discovered on the voir dire is no sound reason for not remedying the situation when the discovery is made.

To sustain the view expressed by the majority, only the case of Jones v. State, 230 Ark. 18 , 320 S. W. 2d 645 , is cited, and that case is npt in point. There a juror was discharged over the objection of the defendant. There was no contention that the juror was related by consanguinity or affinity to a member of the family of the person alleged to have been injured by the offense charged or on whose complaint the prosecution was instituted. The juror in the Jones case was merely a sister to a policeman who was a witness for the State. If anyone had a right to object to the sister of the policeman serving as a juror, it would have been the defendant, and he made no objection whatever. In fact, he objected to the juror’s being discharged.

Next is the matter of the trial court’s refusing to permit counsel for defendant to question venireman in regard to their feelings about integration of the schools. It is a matter of common knowledge that the dynamiting of the school building grew out of the integration of the schools controversy in Little Bock. In addition, the State introduced testimony to that effect. The State’s witness, Sims, who blew up the Nalley car, testified that the dynamiting was done for the purpose of harassing the public and keeping the Negroes out of the white schools. There are people who firmly believe that the schools should' be integrated; on the other hand, others are firmly convinced that the schools should not be integrated. The situation in Little Rock has been such as to arouse the emotions of many people. Undoubtedly the dynamiting of the school building was calculated to prevent integration. In these circumstances the attorney for the defendant would want to know how a juror felt on the subject of integration. In all probability he would exercise a peremptory challenge on a venireman who strongly favored integration. But the court would not permit the veniremen to be questioned on how they felt on that subject. Again the majority have not cited a single authority that sustains the view expressed. The majority quote from 31 Am. Jur. 121 . Instead of sustaining the majority, it is clear that the cited text is favorable to the contention made by appellant. As heretofore pointed out, it was of the utmost importance for defense counsel to know, how the jurors felt on the integration question, but he was denied the right of getting this information from the veniremen. The majority state: “When relevant'and of significance to the ease being tried, inquiry should be allowed to be made on voir dire as.to membership in.an organization.’-’ But the majority do not follow this principle and do not point out in what way a venireman’s convictions on the integration question would be immaterial when a person is charged with a very serious crime committed in an attempt to prevent integration, as proved by the State. In Bethel v. State, 162 Ark. 76 , 257 S. W. 740 , Judge McCulloch said: “ ... an accused has a right, for the purpose of determining the extent- to which he will avail himself of the statutory peremptory challenges, to inquire as to the membership of the proposed jurors in an organization ‘where it is shown that there are reasons why membership in an organization might influence the parties to the litigation in the exercise of peremptory challenges,’ and ‘that the court ought to permit the inquiry to be made, if it. appears to be made in good faith.’ ”

In the case at bar the State proved that the defendant committed a crime in an attempt to prevent integration of the schools. The defense attorney might have been extremely negligent if he had failed to attempt to learn how a venireman felt about integration. The situation is likened to a case where a person is charged with bootlegging liquor. Certainly defense counsel should be permitted to inquire if a venireman is a prohibitionist. In the case of Pendergrass v. State, 121 Tex. Cr. R. 213 , 48 S. W. 2d 997 , the charge was “illegally transporting liquor,’’ and, although the defendant did not make his record properly, the court said: “It would have been proper for appellant’s counsel to elicit from each juror whether or not he was a prohibitionist, in order that he might intelligently exercise his peremptory challenges. (Citing cases.) The right to appear by counsel, guaranteed by the Bill of Rights, carries with it the right of counsel, within reasonable limits, to examine each juror individually in order to prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute. ’ ’ (Citing cases.)

In 50 C. J. S. p 1043, it is said: “With the exception of such questions as the juror may be privileged from answering on the ground that the answer would tend to degrade or incriminate him ... a juror may be fully examined and asked any questions which are pertinent to show the existence of bias or prejudice, and may be examined as to any bias with respect to the nature of the case or the subject matter of the litigation as well as with respect to the parties personally.” And in 50 C. J. S. p. 1036, it is said: “The right to a trial by a fair and impartial jury includes the right to have the jurors sworn and examined as to their qualifications, and it is error for the court to deny this right if properly requested before the jury is sworn. This right may be exercised by either party to a civil or criminal action, and exists with respect to each particular case regardless of the fact that the same jurors have been examined in other cases. The purpose of voir dire examination is to determine whether a juror possesses the necessary qualifications, whether he has prejudged the case, and whether his mind is free from prejudice and bias, so as to enable the party to ascertain whether a canse for challenge exists, and to ascertain whether it is expedient to exercise the right of peremptory challenge, . . . ”

The next point is the refusal of the trial court to permit defense counsel to continue the examination of the venireman Smith after he had stated he had an opinion as to the guilt or innocence of the accused which would require evidence to remove. The majority state: “It was not shown that Smith had discussed the ease with any witness.” Neither does the record show that he had not discussed the case with witnesses. Mr. Smith stated frankly and unequivocally that he had an opinion as to the guilt or innocence of the defendant and that it would take evidence to remove such opinion, but on further questioning by the court he stated that he could give the defendant a fair and impartial trial. The defense attorney then attempted to question Smith further about his opinion, but the court ruled that no further questions along that line would be permitted. The majority state that the court “ruled that . . . the juror would not be excused for cause,” and then a long line of cases is cited to the effect that the mere fact a venireman has an opinion based on newspaper reports or rumor does not disqualify him. Appellant makes no contention that such is not the law, but appellant does say that when the venireman stated that he had an opinion based on what he had “seen, read and heard,” he was prima facie disqualified and that he remained disqualified until it is shown by further questioning that what he had seen, read and heard was only newspaper items or rumors and that he had not actually been a witness to the commission of the crime and had not talked to witnesses who purported to know the facts in the case.

The State made no effort to show how Mr. Smith arrived at the opinion which he stated he had as to the merits of the case, and the defendant was not allowed to fully develop the facts on that point. The Court said, in Sneed v. State, 47 Ark. 180 , 1 S. W. 68 : “The entertainment of preconceived notions about the merits of a criminal case renders a juror prima facie incompetent. But when it is shown that the impression is founded upon rumor, and not of a nature to influence his conduct, the disqualification is removed.” To the same effect is Hardin v. State, 66 Ark. 53 , 48 S. W. 904 . In the case at bar the disqualification was never removed.

For the reasons stated herein, I respectfully dissent.

George Rose Smith, J., joins in that part of this dissent pertaining to the juror Illing. Johnson, J., joins in this dissent.