Opinion
No. 30488.
June 5, 1933. Suggestion of Error Overruled, July 7, 1933.
CRIMINAL LAW.
That juror was not in fact a qualified elector held not to vitiate verdict of guilty (Const. 1890, section 264).
APPEAL from the Circuit Court of Scott County.
Frank F. Mize, of Forest, and Webb C. Mize, of Gulfport, for appellant.
The appellant assigns as error the overruling of his motion for a new trial for the following reasons: (a) because the juror Elbert Ober had a son, Clide Ober, whom he knew was one of the main prosecuting witnesses and failed to disclose this fact to the court on his voir dire examination and this fact was unknown to the defendant or his attorney until after the trial; (b) because the juror Elbert Ober had made and expressed an opinion before the trial of the case, damaging to appellant; (c) because the juror Elbert Ober was not a qualified elector of Scott county, Mississippi.
35 C.J., sec. 333; Garner v. State, 76 Miss. 515; Jeffreys v. State, 74 Miss. 675; Shepprie v. State, 79 Miss. 740; Dennis v. State, 91 Miss. 221; Logan v. State, 50 Miss. 269; State v. Carter, 11 Ohio Dec. (Reprint) 123; Jewsbury v. Sperry, 85 Ill. 56; Pool v. Chicago, etc., R. Co., 2 McCrary (U.S.) 251; McKahan v. Baltimore, etc., R. Co., 223 Pa. St. 1.
The Mississippi Code of 1930, section 1229, states for jury service a juror must be a qualified elector. We submit that from the evidence in this case Mr. Ober was incompetent.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
A finding by the trial court, on motion for new trial, that a juror was not hostile to accused will not be reversed where the testimony on the subject is conflicting.
Schrader v. State, 84 Miss. 593, 36 So. 385.
On appeal, the finding of the circuit court as to a juror's qualifications is prima facie correct.
Donahue v. State, 124 Miss. 20, 107 So. 15; Penn v. State, 62 Miss. 450; Helm v. State, 67 Miss. 562, 7 So. 487.
Under section 2030, Code of 1930, it is the trial judge's duty to pass upon the qualifications of jurors, and there being so much discretion vested in him, that his holding should not be disturbed unless manifestly wrong.
Where it is not shown that the facts upon which an objection to a juror is based were unknown when the juror was accepted, the objection will be unavailing.
Fulcher v. State, 82 Miss. 630, 35 So. 170; Grady v. State, 130 So. 117; Queen v. State, 120 So. 838; Salmon v. State, 118 So. 610; Long v. State, 141 So. 591.
Argued orally by Frank F. Mize and Webb C. Mize, for appellant, and by W.D. Conn, Jr., for the state.
The evidence is sufficient to sustain the verdict, and there is no reversible error in the admission of evidence, nor in the instructions to the jury.
There is a question in the case, however, in respect to the juror, O'Ber, which we have regarded as serious. But, upon a careful consideration of all the evidence bearing upon this question, we have come to the conclusion that the action of the trial court in overruling the motion for a new trial, in which motion the point about said juror was raised, is not so clearly wrong as to authorize us to interfere.
Upon the point that the said juror was not a qualified elector, it appears that the juror was duly registered and qualified, and had voted at all the elections until the making of the new registration in the county only a few months before this trial. It is entirely probable that the juror did not know of the new registration and was, therefore, honest in his answer on the voir dire that he was a qualified elector. Moreover, the new registration books were easily accessible to counsel in impaneling the jury, and if the disqualification of the juror was to be insisted upon because not registered, that point should have been made then. But whether so or not, this point is governed by section 264 of the Constitution which distinctly provides that, while a juror shall be a qualified elector, the want of that qualification shall not vitiate any indictment or verdict.
Affirmed.