holding that the defendant failed to exercise available peremptory challenges on jurors he had challenged for cause thereby losing the ability to challenge the jurors on appeal despite his use of all his peremptory challenges
How later courts described this case
- holding that the defendant failed to exercise available peremptory challenges on jurors he had challenged for cause thereby losing the ability to challenge the jurors on appeal despite his use of all his peremptory challenges
- “A further complaint under these two assignments is that the Court overruled his challenge for cause of the five jurors whom defendant, as above stated, accepted. We see no merit in that complaint because, as appears from the above statement, defendant having at that time eight peremptory challenges which he could have exercised but did not do so.”
Written by the judges who cited it.
The opinion
Mr. Chief Justice Neil
(dissenting).
I respectfully dissent from the majority opinion as to the ruling’ of the trial court in the qualification and empaneling of jurors. I think it was reversible error for the court to permit the District Attorney G-eneral to state to prospective jurors what he expected to prove as evidencing the guilt of the defendant, and then ask each of them of they would agree to return a verdict imposing the death penalty. It is true that some of the jurors stated on their voir dire that whether or not they would sentence the defendant to death would depend upon the facts and the law as charged by the court. But regardless of this I feel that the examination of prospective jurors by the State’s counsel was not only highly prejudicial but unlawful.
*480 When the case was called by the clerk, and both the State and the defendant’s counsel announced ready, the District Attorney General addressed the court as follows: (There were twelve prospective jurors then in the jury box to be examined on their voir dire).
“Mr. Smith: If your Honor please, and gentlemen of the jury, we have for trial this morning the case of the State of Tennessee versus John Arthur Hale, seated here; he is charged in the indictment, gentlemen, with the assault and battery on a female under the age of twelve years with the intent to carnally know her.
“Now, gentlemen, the facts briefly are that in the middle of the morning or shortly before noon on Saturday, October 17th, this defendant took little Linda Kay Killingsworth who at that time was eight years old and lived at 2993 South Wall Street, off Lamar, out close to the Non Oonnah Bottoms, he took her down into the Non Connah Bottoms into some wooded area there, at which time he raped her. The proof will show you that the rape was committed in her rectum.”
He then read Section 10785 of the official Code, which provides that an assault and battery with intent to carnally know a female under the age of twelve years shall be punished as in case of rape. He then read the statute prescribing the punishment for rape, to wit, death by electrocution provided the jury may “if they think proper commute the punishment for the offense to imprisonment in the penitentiary for life or for a period of not less than ten years.”
He then stated that the State was demanding the death penalty and asked each individual juror if he be *481 lieved in capital punishment. Following this question he asked:
“Mr. Smith: If the state proves this man guilty of this offense, under the charge given you hy the Court would you vote to convict him and fix his punishment at death hy electrocution?”
He repeated the foregoing statement a number of times to prospective jurors, asking each and every one, “And you will vote to fix his punishment at death hy electrocution?” To which there was an affirmative answer.
If any juror indicated his disbelief in capital punishment, or an unwillingness to impose the extreme penalty in the instant case, he was challenged for cause and was sustained hy the trial judge. The following appears in the record:
“Mr. Smith: You would have some hesitancy, if you felt this was a proper case, to give the man the death penalty?
“Mr. Gurley: I am not sure about that at this time.
“Mr. Smith: You can’t answer me whether you would vote to give him the electric chair if it was a proper case; you can’t answer that yes at this time?
“Mr. Gurley: Not truthfully, I don’t believe.
“Mr. Smith: If your Honor please, we challenge him for cause.
“The Court: Report back to the big jury room.
“(Mr. Gurley excused.)”
"When twelve jurors had been examined, passed and tendered to the defendant, his counsel moved the court that the entire list of prospective jurors accepted hy the State he disqualified for cause upon the following grounds: “In the first place, the Attorney General *482 purports to indoctrinate these men with certain facts when they should not have been given any facts until the witnesses get on the witness stand; in the second place it is up to the point where he was telling the jury those were the facts, and they have been indoctrinated even before selected, as to certain facts, and of course their qualification will be predicated on that statement in which the attorney general tells them facts; and it is our position and we contend they are not facts and will hot be facts until we put competent witnesses on the stand to testify as to those, and it is improper in the selection of a jury to introduce those as facts, so that when witnesses are called, merely it will be corroborating what has been given to them as facts.”
Secondly, “if your Honor please, every man qualified by the State has pledged himself in advance of the trial and'in advance of hearing a word of evidence, he has pledged himself as to what sentence he will render.” The objection was overruled by the trial judge and exception noted.
Under cross-examination by defendant’s counsel answers were elicited to the effect that the death penalty would be imposed provided the evidence sustained the State’s theory as had been outlined by the District Attorney General. As indicating the trend of the examination the court made the following inquiry:
“The Court.: In other words, you are not, as the court understands you, making a statement at this time that if you find him guilty beyond a reasonable doubt, your only verdict would be the extreme penalty; that is not your statement, is it?
“The Juror: Well, that is what the state is asking for, isn’t.it?”
*483 It furthermore appears that the defendant’s counsel was not permitted to ask prospective jurors if their verdict would be less than death in the event ‘ ‘ any proof develops mitigating circumstances”. (Tr. pp. 91 and 92). The counsel stated in response to an objection by the District Attorney General that he was asking the question to find out if he should challenge the juror peremptorily. The foregoing is a summation of what transpired in the examination of jurors on their voir dire. The entire examination of jurors left no doubt in the mind of any of them that the State would not be satisfied with a verdict short of death by electrocution, and that it would be their duty to return such a verdict.
When the twelfth juror was passed by the State and tendered to the defendant he was compelled to take him because he had exhausted all of his peremptory challenges.
The examination of jurors covers 140 pages of the record. The procedure in my opinion has no precedent in this State.
It is undoubtedly true that the State’s counsel has the right to state to any and all jurors before they are sworn to try a case that the death penalty will be demanded; also to ask if the juror is opposed to capital punishment. The fact that a juror does not so believe is recognized as a ground for “challenge for cause”. But I know of no case in the judicial history of this State where the prosecution was ever permitted to ask a juror on his voir dire if he will agree to fix a defendant’s punishment at death. The prospective juror answers that question under oath. In these circumstances it would be extremely difficult for a juror to enter upon a consideration of the case with an open mind as to the guilt or innocence of the accused and what penalty should be imposed.
*484 I fully agree that the evidence in this case does not preponderate in favor of the defendant’s innocence; it is doubtless the other way. He is under conviction of a heinous and revolting’ crime. But he is nevertheless entitled to be tried according to recognized rules of procedure ; otherwise there is no safety in the law. I feel that a new trial should be granted.
Considering the fact that the death sentence is being upheld by a divided Court, the Governor would doubtless be justified in granting some measure of commutation.