It is a well-settled rule of law that, if a juror has formed or expressed an opinion previous to the trial to the effect that the defendant is guilty, or that he should be hanged, and conceals that opinion and the expression of it on his voir dire examination, and the defendant had no knowledge of it before trial, a new trial should be granted. (United States v. Upham, 2 Mont. 170; Territory v.Kennedy, 3 Mont. 520; State v. Mott, 29 Mont. 292,74 P. 728; Territory v. Chartz, 4 Ariz. 4, 32 P. 166; Ellis v.Territory, 13 Okla. 633, 76 P. 159; State v. Swafford,88 Wash. 659, 153 P. 1056; Corley v. State, 162 Ark. 178,257 S.W. 750; State v. Connor, (Mo. Sup.) 274 S.W. 28; People v. Ortiz, 320 Ill. 205, 150 N.E. 708; People v. Plummer,9 Cal. 298; People v. Galloway, 202 Cal. 81, 259 P. 332;Fitzgerald v. People, 1 Colo. 56; Mask v. State,5 Okla. Crim. 191, 113 P. 995; State v. Morgan, 23 Utah, 212,64 P. 356; Fletcher v. Commonwealth, 239 Ky. 506, 39 S.W.2d 972;Baker v. Commonwealth, 192 Ky. 478, 233 S.W. 1046; Pointer v. State, 24 Ala. App. 23, 129 So. 787; 16 C.J. 1152 et seq.; Wharton's Crim. Pl. Pr., 9th ed., sec. 844.)
The reason for the rule is obvious. It was well stated inPeople v. Plummer, supra: "One of the dearest rights guaranteed by our free Constitution is that of trial by jury; — the right which every citizen has to demand, that all offenses charged against him shall be submitted to a tribunal composed of honest and unprejudiced men, who will do equal and exact *Page 589 justice between the government and the accused, and, in order to do this, weigh impartially every fact disclosed by the evidence."
The fact that juror McLean wrote the article in question is conceded. The juror conceded likewise that when he wrote, "Did you notice how quickly our legal officers placed their hands upon the murderer?" he had reference to defendant, Hoffman. He knew of none other who had been arrested. The meaning of the expression, "Contrasting to this picture of wisely used talents is the picture of the miserable wretch that murdered defenseless and helpless George Burrell. He buried his talent very deep. And when the wheels of justice cease to grind his worthless carcass will lie to rot as deeply buried as was his talent," is clear and unambiguous. It can only mean that whoever killed Burrell should pay the death penalty. The two items, though written at different times, were sent to the press at the same time as parts of one article.
It is true, as stated in the majority opinion, that, if a talesman has conscientious scruples against the infliction of the death penalty, he should not be permitted to serve as a juror. This is because the death penalty is one fixed by law and the state is entitled to a jury which will abide by the law. It is to assure the state of a fair trial under the law. Conversely, if a juror has a fixed opinion before hearing the evidence that the death penalty, and that alone, should be imposed, he is equally disqualified. He in effect has a prejudice against the law as applied to that particular case which permits the punishment of life imprisonment. Here it should be noted that the punishment was not left to the court. The jury inflicted the death penalty. If it be conceded that the juror McLean could fairly try the issue of insanity, I fail to see how under any conceivable theory he could be said not to have formed or expressed a fixed opinion prior to hearing the evidence as to the penalty that should be imposed in case defendant were found guilty.
A newspaper is a powerful instrument in the molding of public opinion and sentiment, and no one appreciates it more *Page 590 keenly than those engaged in that work. I think it is an extremely dangerous precedent to pronounce a juror qualified in a case in which he has taken such interest as to write an article such as the one before us (editorially, I may say, but under the guise of a news item) merely on the theory that it must have been but the flowery expression of abhorrence over the perpetration of a brutal murder.
It must be remembered, too, that the fact that McLean wrote the article was unknown to defendant and his counsel on the voirdire examination, and hence section 11962, relied upon in the majority opinion, relating to challenges, has no application.
In my opinion, a person making the statements contained in the newspaper article in question could not enter upon a consideration of the case with an open mind and do equal and exact justice between the state and the defendant.