People v. Brotherton

By the Court,

Wallace, C. J.: The prisoners, George and Lewis Brotherton, were convicted of the crime of forgery, and their motion for a new trial- being denied they appeal from the judgment and from the order denying a new trial.

In impaneling the trial jury, one Butler was called and [531]examined as to Ms competency to sit as a juror. He stated, in answer to questions propounded by counsel for the prisoners, that he had read a newspaper account of a previous trial of the prisoners upon the same indictment; that he formed an opinion at the time that the prisoners were guilty; that he had expressed that opinion, and that he had not heard or read anything since then to change it. In his examination by the counsel for the prosecution, he stated that his opinion was formed not only from reading the newspapers, but also from conversations he had had with different parties, though these persons knew nothing more than what they' had learned from general public rumor. Upon being examined by the counsel for the prisoners, he again stated that he had expressed his opinion. The counsel for the prisoners then challenged Butler for implied bias: First, because he had formed an unqualified opinion as to the guilt of the prisoners; second, because he had expressed that opinion. The challenge was overruled by the Court, and Butler was thereupon peremptorily challenged by the prisoners, whose peremptory challenges were exhausted before the jury was completed. It is too late, in this Court at least, to argue, as has been attempted by counsel for the prosecution, that the unqualified expression of an opinion, even though the opinion itself be of a qualified character, is not ground of challenge for implied bias. This position was distinctly taken and as distinctly overruled here fifteen years ago, in People v. Cottle, 6 Cal. 227, and the doctrine of that case has ever since then been approved; and in The People v. Edwards, 41 Cal. 640, referring to the case of People v. Cottle, supra, we used this language: “The statute declares that the unqualified expression of an opinion as to the guilt or innocence of the prisoner is ground of challenge for implied bias. When such challenge is interposed, it is no answer to say that in the mind or thought of the [532]party the opinion was qualified, if in the form of expression it was unqualified.”