The opinion
Mr. JUSTICE TRAPP dissenting:
Upon a strict review of the record it might be said that there was a waiver of defendant’s challenge for cause as to the juror, Davis. It seems more appropriate, however, to review the issues upon the facts of record.
In determining that it was reversible error to deny the challenge for cause, the opinion turns to the “cumulative effect” of factors of acquaintance and relationship, although no single factor was considered compelling. It seems fair to point out that many of such factors were remote in time and place.
We note that the telephone conversation with a victim, Hornstein, was Davis’ inquiry concerning the purchase of a pool table advertised by the former. Such occurred a year prior to tile time of the offense, and the matter was dropped when Davis learned the size of the table.
There is reference to an acquaintanceship with a physician who testified at the trial. The record shows that it was some twenty years since the physician and Davis had been neighbors, or had enjoyed a physician-patient relationship. There was, in fact, no challenge or controversy concerning the medical testimony.
The potential influence of the affinity with the witness, Hurrelbrink, seems meaningless in the light of the record that Davis had not seen such witness in three or four years, although they had lived but a few miles apart. The voir dire shows that Davis’ wife was employed in the court house with the Board of Review. The record also shows that defendant’s counsel was friendly with her, and that he sought her services for the transaction of his business in that office. We perceive no basis for influence in the fact that Davis’ son was an employee of the State Highway Department. United States v. Wood, 299 U.S. 123 ; 81 L.Ed. 78 .
The role of the sheriff, Ryan, as a witness was virtually nil as presented in the abstract of defendant. He was present at the time of arrest and testified as to the posting of a guard, but we find nothing in his testimony as to matters of controversy. Thus, this case has a substantial distinction from the cited State v. Jackson, 43 N.J. 148 ; 203 A.2d 1 ; 11 A.L.R.3d 841 . In that case the challenged juror was a close friend of a police detective, and it appears that the case turned upon a stem attack upon the credibility of the detective. Such factor is not present here.
A complete evaluation of the abstract of the voir dire examination, including the portion quoted in the opinion, discloses frank and conscientious response to the questions of the court and counsel, and a serious realization of the responsibilities of a juror. While summary may be challenged, it seems fair to say that Davis answered that he had no opinion as to guilt or innocence, that he would subject the witnesses whom he knew to the same standards of credibility as those whom he did not know, and that he would suffer no embarrassment in returning a verdict which might be adverse to the State’s Attorney whom he knew. As to the latter item, he pointed out that he would have to five with his conscience. In the context of the abstract it seems fair to say that Davis
responded affirmatively to the question of defense counsel, “* * # would you accept a juror in the same frame of mind as you are now in in this case?” (By this quotation we do not imply approval of the form of question.)
Our statute provides that it shall not be a challenge for cause that a juror has read a news account of a crime or that he has formed an impression or opinion based upon rumor or a news account, if such juror shall, upon oath, state that he can fairly and impartially render a verdict in accordance with the law and the evidence, * * and the court shall be satisfied of the truth of such statement”. (Ch. 78, par. 14, Ill. Rev. Stat. 1967.) This standard of measure meets the requirements of due process as developed in Irvin v. Dowd, 366 U.S. 717 ; 81 S.Ct. 1639 ; 6 L.Ed.2d 751 . See People v. Gendron, 41 Ill.2d 351 ; 243 N.E.2d 208 .
The majority opinion in People v. Cesarz, 44 Ill.2d 180 ; 255 N.E.2d 1 , and the opinion in People v. Harris, 38 Ill.2d 552 ; 232 N.E.2d 721 , are controlling on this issue. The latter case dealt with a juror’s business association and social acquaintanceship with the prosecuting attorney, while the former dealt with the acquaintanceship with witnesses and the family of the decedent. In each case the test by the court was the presence or absence of an opinion of guilt, whether the juror could apply the same test of credibility to the witnesses known as to those who were unknown, and whether the juror would suffer embarrassment in returning a verdict against counsel known to him. Upon this last question Davis volunteered the statement of his consideration of his conscience in returning a verdict. Here, as in Harris, Davis indicated that he would consider a juror having his then frame of mind to be fair and impartial in the trial of a case in which he, the juror, was a party.
The trial judge conducted a careful voir dire and we have observed no limitation upon the interrogation of the juror by counsel. During a considerable period of time the trial judge had an opportunity to observe Davis as he made his answers to the questions. The record shows that there was meticulous care in applying the standards of qualification which have been discussed. The challenge for cause was presented and considered outside of the presence of the jury at a time when four jurors remained to be accepted, so that there was no direct focus upon this juror. I cannot agree that there is an abuse of discretion where the trial court has, in fact, applied the rules established by the statute and case law.