Being unable to agree with my brethren in the conclusion reached in the disposition of this case I respectfully enter my dissent. I am of opinion that McLilland was not a competent, fair or impartial juror, and should not have been permitted to sit on the trial of this case. When the State had finished examining this juror he was turned over to appellant for further examination in regard to his competency, when the following matters occurred as shown by the bill of exceptions:
"This is a case of the State of Texas against K.C. Jones; he is alleged to have killed a man by the name of Charles Stewart on the 26th day of May of this year out here at Suderman-Dolson's camp, in Harris County, Texas. Have you from hearsay or otherwise formed in your mind such an opinion as to the guilt or innocence of the defendant as would influence your action as a juror in arriving at a verdict? A. I don't remember ever hearing of the case. Q. Have you any scruples against inflicting the death penalty as a punishment for crime? A. No, sir.
Cross-examination: Q. You say you never heard anything about the case? A. Don't recall anything about it. Q. How long have you lived in Texas? A. I have been here in Houston forty-five years. Q. What is your business? A. I am in the real estate and investment business. Q. Have you any prejudice against the negroes as a race? A. I can not say that I have; I have handled and worked negroes all my life. Q. Would the fact that the party killed was a white man and the defendant here, a negro, would that create in your breast any prejudice against him? A. No, I do not think it would. Q. Are you sure about that? A. No, it would not create any prejudice one way or the other. Q. Do you recognize a condition of the mind known as insanity? A. Yes, sir, I know that there is such a condition that exists. Q. If you were selected as a juror, and the State were to prove conclusively that the defendant killed the deceased without legal justification or provocation and the plea of insanity was interposed, and we were to establish his insanity by a preponderance of evidence, and the court would charge you that if you believed that his insanity was established by a preponderance of the evidence; that at the time of the commission of the offense he was insane, you should acquit him, suppose that was established on his part and suppose the court should submit a charge as indicated, what would be your action in the matter? A. Well, there would have to be mighty strong evidence of insanity to make me *Page 147 believe it to the point of acquitting a man that I thought was guilty or otherwise. Q. Suppose the preponderance was in favor of that contention, and the court would charge you, in view of the preponderance of the evidence sustaining the contention of insanity, you are required to acquit him, would you follow the instruction of the court or adhere to your judgment as you understand it? A. Well, I would judge if the instructions of the court were to that effect, that the preponderance of the evidence would be overwhelming, of course. Q. Suppose simply that the evidence, as far as that contention is concerned, preponderated to the effect that he was insane and suppose the court instructed you, if you believe from the preponderance of the evidence that the defendant was insane at the time of the commission of the offense, you should acquit him, you must acquit him, what would you do in the matter? The court: You understand that you will be the judge of the evidence; the evidence will be submitted to you; the court will charge you as a matter of law, that if the defendant was insane at the time he committed this offense, he is not responsible in this case and you must acquit him, and the evidence shows to your satisfaction, by a preponderance of the evidence, that he was insane at the time, under the court's charge, you must acquit him, the question is whether you would follow the court's charge and acquit him, if you believe from the evidence he was insane at the time he committed the offense? A. Yes, I would follow the court's charge in that case. The court: You are not required to discuss what the evidence would have to be, that is the action of your own mind, the question is, after you are convinced by a preponderance of that evidence? A. If I was convinced and the instructions of the court were to acquit, in that case I would follow the instructions of the court. Q. The evidence on that point would have to be overwhelming? A. It certainly would be. Defendant: I challenge the juror for cause, the defendant has already exhausted his peremptory challenges. The court: I will overrule the challenge. Defendant: To which action of the court the defendant excepts for the reason that the juror stated that the preponderance of the evidence in order to authorize him to acquit the defendant must be overwhelming and the defendant objects because the juror requires a greater degree and a greater amount of testimony in support of the contention of insanity than the law requires. The defendant further challenges the juror for cause, which challenge is overruled and not sustained by the court, to which action of the court and its ruling the defendant here now excepts and reserves this his bill for the same cause."
Appellant's peremptory challenges were exhausted before this juror was reached. He insisted on the trial and now insists, and I think correctly, that his challenge for cause to this juror should have been sustained under his answers as contained in the bill of exceptions. By those answers the juror made it certain that he would not acquit *Page 148 appellant on the theory of insanity, even if he was convinced and the instructions of the court were to acquit, unless the evidence on that point was overwhelmingly convincing of the fact of insanity. His reply was that "It certainly would have to be overwhelming." Under no rule of law or of evidence is it required or has been required that insanity must be overwhelming in order to authorize or require an acquittal on that theory. The rule has always been in this State, that an acquittal would be required when there was a preponderance of evidence to the effect that appellant was insane. A preponderance of the testimony is the limit of the rule in such state of case. The law only demands that quantum of evidence. The law does not require that the testimony should establish insanity by overwhelming proof. This juror was evidently an unfair one to the accused, and was not of that impartial character which is required by the Constitution — article 1, section 10 — and demanded by the law. He says, "If I was convinced and the instructions of the court were to acquit, in that case I would follow the instructions of the court." But he further says, the evidence on that point would certainly have to be overwhelming. It would seem, therefore, from the answer of the juror that even if the court were to instruct an acquittal, that he would not be governed by the instructions unless the facts were overwhelming that appellant was insane. The legal preponderance of evidence required by the law and stated in the charge of the court would not be the governing rule with this juror. His criterion was above the law and the charge of the court, and required that the evidence be overwhelming in its nature and effect. The evidence in the case was not overwhelming to his mind as demonstrated by his verdict of death.
I can not bring myself to the point of agreeing with my brethren in the affirmance of this judgment for the reasons stated, and, therefore, respectfully enter this my dissent.
ON MOTION FOR REHEARING. October 26, 1910.