People v. Symonds

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring. The defendant was convicted of the crime of murder in the first degree, from which judgment he has appealed, and assigns three causes of error:

1st. Error in denying the defendant’s chaEenge for cause to the juror John A. Tutt.

[351]The ground of this challenge, though not specifically stated in the challenge, is claimed to be implied bias, as shown by the answers of the juror when questioned. After the juror had stated that he did not remember to have read the proceedings on a former trial, though he might have read a portion, that he had not conversed with the witnesses, but had with outsiders, the questions and answers are as follows : Question—Have .you an opinion as to the guilt or innocence of the defendant ? Answer—I have. Q.—Is that a fixed, unalterable opinion ? A.—No, sir; it is not. Q.—Would it require testimony to remove the opinion you now have ? A.—I do not know how to answer the question ; that is, of course, without any evidence at all I would consider him innocent; in the impression I have yet upon my mind, I do not know that it would. It might, though. I hardly know how to answer the question. Q.—Is the opinion you have an unqualified opinion ? A.—No, sir; it is more an impression with me than an opinion. I do not remember the evidence in the case.

The statute requires that an opinion which shall constitute implied bias shall be “ an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.” The difference between an opinion and an unqualified opinion or belief is not very broad, and sometimes not recognized by a juror. It is very proper by other questions to ascertain whether in fact the opinion is an unqualified one or is dependent upon the truth of facts or rumors which the juror may have heard, or whether it is merely an impression. In the case of the People v. Reynolds (16 Cal. 128), the Court say: “ The effect upon his mind must be more than an impression; it must amount to a conviction in order to exclude him for implied bias.” “ The shades of distinction between opinion and impression may not always be easily discriminated, even by the juror himself; but the statute has drawn the distinction, and in a great majority of instances the juror may be made to comprehend it.” In the present case, after the juror had stated that he had formed an opinion but that it was not a fixed, unalterable opinion, questions were put to him for the purpose of ascertaining more clearly the character of this opinion, after which the juror says it is not an unqualified opinion, that it is more an impression than am