Appellant was convicted of murder in the second degree, his punishment being assessed at confinement in the penitentiary for a term of twenty years; hence this appeal.
When the case was called for trial appellant moved a change of venue, upon both grounds set forth in the statute. In support of both grounds there were ten compurgators; and in support of the first ground, to wit, prejudice, there were thirty-one. The contesting affidavit for the State was signed by the county attorney. The court, before the evidence began upon the issues involved in the motion, limited the number of witnesses to each side at fifteen, and of its own motion stopped the testimony, denied appellant the right to introduce further proof in support of the motion, overruled it, and put him upon his trial. The reasons for prohibiting the introduction of further evidence on the motion were: first, the evidence for and against it showed a prejudice in the county against the cause, and not the person of appellant; second, that this character of prejudice is not contemplated by article 578 of the Code of Criminal Procedure, but the prejudice there meant must be limited to the individual, and does not extend to the supposed crime or the case. Reasoning from these premises, the court concluded that the change of venue should be granted, if at all, under the provisions of article 579 of the Code of Criminal Procedure, and that all such prejudice could be reached by testing the veniremen in regard thereto, under the provisions of subdivision 13 of article 636 of said code. That such was the view of the law entertained by the court is rendered certain by his language, set out in the bill of exceptions, to wit: "If prejudice against the case of the defendant and prejudgment of same constituted prejudice, such as is meant by the statute, then the defendant would be entitled to a change of venue. Now, I take it, that under the facts in support of this motion, a change of venue could only be had under article 579 of the Code of Criminal Procedure. And in order to warrant a change of venue under that article, the proper practice would be, before granting a change of venue, to first endeavor to procure a jury from the body of the people who know nothing of the cause. The defendant is, under our laws, guarantied the right to challenge for cause any man who has prejudged his case; and, until an effort has been made to procure a jury from the body of the people who have not so prejudged the case, I do not believe this court would be warranted in granting a change of venue in this case."
The question here presented for our decision is, What is meant by the "prejudice" mentioned in article 578 of the Code of Criminal Procedure? Does it mean to prejudge the case? Or does it mean antipathy, dislike, or hatred against the accused, separate and distinct from his crime? Or does it mean prejudice against the accused and his case? In our view of the law, it means either. If there is such a prejudice existing against the accused that he can not obtain a "fair trial by an impartial jury" in the county from which the venue is *Page 58 sought to be changed, it is immaterial from what source this prejudice comes, or what cause or causes produced it. We think the correctness of this position can be demonstrated. Our Bill of Rights provides, that the accused in all criminal prosecutions "shall have a fair trial by an impartial jury." Art. 1, sec. 10. This language is of no doubtful significance. The trial shall be "fair," and the jury "impartial." "Impartial" means "not partial; not favoring one party more than another; unprejudiced; disinterested; equitable; just. Jove is impartial, and to both the same." Webst. Dict. As thus defined, "impartial" evidently means not favoring a party or an individual because of the emotions of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause, should not, must not be prejudged. The accused in this State, under our Constitution and laws, is entitled to a "fair trial by an impartial jury;" and there is no other method provided by which an accused can be tried and punished. Looking to this supreme end, the Constitution has further ordained, that "the power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the Legislature shall pass laws for that purpose." Const., art. 3, sec. 45. This provision of the Constitution, when applied to criminal causes, could have been ordained but for the purpose of guarantying "a fair trial by an impartial jury," provided for by the Bill of Rights. Any other interpretation would render it meaningless, useless, "as sounding brass or tinkling cymbal." In pursuance of and in obedience to these high commands of the Constitution, the Legislature enacted, that "a change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine: (1) That there exists in the county where the prosecution is commenced so great a prejudice against him that he can not obtain a fair and impartial trial; (2) that there is a dangerous combination against him instigated by influential persons, by reason of which he can not expect a fair trial." Code Crim. Proc., art. 578. The single and only purpose for which this law was enacted was to secure the accused the right to a "fair and an impartial trial," which is the "fair trial by an impartial jury" guarantied by the Bill of Rights. This statute realizes and is based upon the fact that there may be "so great a prejudice" or such "a dangerous combination" against the accused existing in the county in which the prosecution is instituted that he can not obtain, or will be deprived of, "a fair and an impartial trial." The Legislature, as a cause for challenge, has also provided, "that the jury has a bias or prejudice in favor of or against the defendant," or "that, from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant *Page 59 as will influence him in his action in finding a verdict." Code Crim. Proc., art. 636, subdivs. 12, 13. These provisions were enacted for the purpose of securing a fair and impartial trial, and apply as well to the State as to the accused. Construing them together, the word "prejudice," mentioned in subdivision 12, refers only to the person of the accused, and means hatred, ill will, dislike, antipathy, etc.
The law authorizing a change of venue proceeds upon the fact, that notwithstanding the most searching questions may be applied to the juror in regard to his bias or prejudice for or against the accused, or whether there is formed in his mind such a conclusion as to the guilt or innocence of the accused as will influence him in finding a verdict, still there may be in the county such a prejudice existing as to render it improbable that the defendant could receive a fair and impartial trial. If it be conceded that all obnoxious jurors could be kept off the jury by being questioned in regard to causes for challenge, then it would seem the law providing for a change of venue would be useless, and should have no place in our procedure, and the provisions of the Constitution would be without purpose, reason, or object — "unto the Jews a stumbling block, and unto the Greeks foolishness." If the juror who has formed an opinion — prejudged the case — can be detected and rejected, under the provisions of subdivision 13 of article 636, why can not the juror who has bias or prejudice in favor of or against the individual be detected in the same manner?
But it is contended, that if the accused is entitled to a change of venue, it is by reason of the provisions of article 579 of the Code of Criminal Procedure, which is as follows: "When an unsuccessful effort has been once made in any county to procure a jury for the trial of a felony, and all reasonable means have been used, if it be made to appear to the court, by the written affidavit of the attorney for the State or any other credible person, that no jury can probably be had in that county, the court may order a change of venue, and cause the reasons therefor to be placed upon the minutes of the proceedings." This article has no reference to or connection with article 578, and provides for a case in which the application for the change of venue may or may not have been made. It refers to that status of case "when an unsuccessful effort" has been made to obtain a jury. The danger in such cases is, that the effort will not be unsuccessful. The prejudice in the county may be such that jurors will qualify themselves who are not impartial, and a jury obtained, composed in whole or in part of such jurors. This is demonstrated by the record in this case. Veniremen O.H. McComas and L.F. Skiles, when tested on their voir dire, qualified themselves thoroughly by deliberately swearing they had formed no such conclusion as would influence them in finding their verdict. Appellant offered to prove by both that they had frequently expressed their belief that he was guilty, and should be hanged. He further proposed to prove by them that they then believed him guilty, and ought to be hanged. The court refused appellant *Page 60 permission to ask Skiles these questions, but permitted them to be asked of McComas, making this exception to his rule, with the remark, that he would not allow other jurors to be thus interrogated on their voir dire, and accordingly, with the utmost strictness, enforced such ruling. When thus questioned, McComas replied that he had frequently expressed the opinion that appellant was guilty of murder, and should be hanged, and that he then so believed. He was challenged for cause, and the challenge was sustained. Appellant was not permitted to thus test Skiles, but he, however, obtained and filed his affidavit, in which he states, under oath, that he had expressed the opinion, and then entertained it, that appellant was guilty, and ought to be hanged, unless he could prove his innocence. Now, these instances show beyond question, that notwithstanding these tests, there may be such prejudice in the county that jurors will qualify who have deliberately formed a conclusion that the accused is guilty, and should be punished. If the accused is required to rely upon the provisions of article 579 for changing the venue, it must be made to appear that he could not obtain in the county a jury in any event, prejudiced or unprejudiced. But even should a jury be obtained, it would not follow that it did not contain prejudiced jurors. Again, it is conceded by the trial judge that there may be a prejudice against the individual which would authorize the change of venue. Now, why can not this prejudice be detected by pursuing the provisions of said subdivision 12 of article 636?
Let us view the question from another standpoint. The object of the Constitution, and laws enacted in accordance therewith, is to secure the accused a "fair trial by an impartial jury." When the juror has formed such an opinion in regard to the guilt or innocence of the accused as will influence his verdict, he is to be rejected; he is not impartial. If he is impartial, because he has formed an opinion against the cause of the accused, such impartiality would be as harmful, if not more so, than prejudice against him as an individual, separate and apart from the crime. The juror may dislike the accused, may be prejudiced against him as an individual, and yet rise superior to such feeling, and do him justice on the trial. But if he has formed an opinion that the accused is guilty — that is, such an opinion as will influence his verdict — the juror would much more likely do injustice than if only he is prejudiced against him as an individual, apart from his crime. Both are legal causes for challenge. Now, then, if there is as much, if not more, danger from a juror who has formed such opinion as to the guilt of the accused as there is from one who is prejudiced against him apart from his crime, with equal if not greater reason should such prejudice — prejudgment of the cause — be a ground for a change of venue. The distinction sought to be drawn by the learned trial judge, when viewed in the light of the Constitution, legislation upon the subject, and the history of this question, is to our minds a novel one indeed. We are cited to no authority in the support of *Page 61 it, and we are of opinion that none is to be found. It is sui generis, at variance with our laws, organic and statutory, and we think subversive of our criminal jurisprudence. The learned trial judge admits, and so states in the bill of exceptions, that if prejudice means a prejudgment of the case, then such prejudice so pervades the county of Dallas that it would entitle appellant to a change of venue. He further states, that the testimony is not conflicting on this point; that the evidence introduced by both parties concurs in establishing the fact that such prejudice does exist in the county; and that that adduced on the part of the State was more explicit than that shown for the appellant. The assistant county attorney of Dallas County, in his argument upon the submission, contended, that nowithstanding the judge so held, and that his views may have been erroneous, yet if the evidence did not authorize the change of venue, the judgment upon this point should not be reversed. In this view of the question we can not concur. If the change of venue was not demanded under the facts of this case, then article 578 would seem to be a dead letter upon the statute book, and should be expunged from the code, as the ruling of the trial court, if correct, would certainly do. We think the lower court eminently correct in holding that, if prejudice meant a prejudgment of the case, the appellant was entitled to a change of venue, and we are of opinion he should have granted the motion and changed the venue.
In doubtful cases, or where there is a conflict in the testimony in regard to the issues involved in such motions, great deference is paid by this court, and indeed should be, to the judgment of the trial court refusing to change the venue of cases. Such is the uniform and harmonious line of decision in this State. The discretion of the court in this case has been exercised favorably to the accused in so far as the facts are concerned, but adversely to him upon the law applicable to the question. If in error as to the law, as the court evidently was, the appellant was clearly entitled to the change of venue. We will not pursue this line of discussion further, but desire to say, in regard to change of venue, that it frequently occurs that good men, honest citizens, swear that the accused can not obtain a fair trial because of prejudice in the county. Ignorant people, persons uninformed as to legal methods provided for obtaining juries, become apparently astonished at such affidavits, and inquire if it be true that twelve honest, fair men can not be found in a county with whom to try the accused. Such questions, by their frequency of occurrence, have almost ceased to cause surprise, but evidence a wonderful degree of ignorance. If the accused be accorded the right to select his friends, or those by whom he is willing to be tried as jurors, from the county, independently of the right of the State to participate in such selection, then it might be safely asserted that motions for change of venue, as a matter of fact, would be unknown to the practice in this State. But this is not true, and should not be; hence the jury must be selected under the *Page 62 rules and by the methods prescribed by law, and all laws in regard to changes of venue are enacted with a view to this fact. As has been forcefully said by the Supreme Court of Iowa, in The State v. Nash, 7 Iowa 371: "The right to speedy and public trial by an impartial jury is guarantied by the Constitution of this State to all persons accused of crime. It becomes us not to place a light estimate upon a right secured to us by such high authority. It is important, to maintain the usefulness of our whole judicial system, that no suspicion of popular excitement in the administration of the law should be allowed to impair the public confidence in the fairness and impartiality of judicial proceedings. An excited state of public feeling and opinion is always the most unfavorable for the investigation of truth. Not only should the mind of the juror be wholly without bias and prejudice, it should not only be free from all undue feeling and excitement in itself, but it should be as far as possible removed from the influence of prejudice and feeling and excitement in others. A circumstance of small importance in itself may often, in the midst of a community stirred by passion and excitement, serve to turn the scales of justice. It is a difficult matter for a court in all cases to draw the true line of distinction, and to say when there is and when there is not such a state of popular feeling and prejudice as to prevent a fair and impartial trial. Every case must be judged by its own circumstances. * * * There is, however, to be guarded against, a feeling and a prejudice not only within but without the jury box; and a jury, however right their intentions, are not always proof against the sympathies of the crowd. Influence of popular excitement and prejudice is too strong for the strongest resolution."
We are of opinion, that appellant should have been permitted to ask jurors if they had formed the opinion that he was guilty, and then believed he was guilty and ought to be hanged. He was placed on his trial for murder — for murder in the first degree. Many questions had been propounded them to ascertain if they had formed an opinion which would influence their verdict. None had elicited such answer, or had the desired effect, it seems, but this question. The touchstone and keynote was thus discovered which probed and unlocked the consciences of the jurors McComas and Skiles, and the court, perceiving this, closed the door, and prohibited the question being asked the other jurors. This was a travesty on justice, and an infringement of the rules of justice, which should pervade every trial and overshadow every seat of judgment. Appellant was entitled to, and had been wrongfully deprived of, a challenge for cause to the juror Skiles, who, under his affidavit, was incompetent to sit as a juror on appellant's trial. He had thoroughly qualified himself by answering all questions propounded to him, yet, when tested by his own affidavit, disqualified himself completely. He not only shows and swears that he was prejudiced, that he believed appellant guilty, and ought to be hanged, but shows a degree of moral turpitude which should have operated to disqualify *Page 63 him as a juror generally. From his affidavit it is conclusively shown not only that he thought, believed, that appellant was guilty and ought to be hanged, and that he would so find, but it is further shown therein that he would so say by his verdict, unless appellant proved his innocence. No question propounded to him had developed this condition of his mind, although he had been asked if he had formed such a conclusion as would influence him in finding a verdict. The question asked by appellant, but excluded by the court, would have done so, if the statements in his affidavit are to be credited.
The indictment was sufficient, independent of and without the amendment; therefore it was not affected by it. We deem it unnecessary to enter into a discussion of this question.
The questions suggested in regard to the supposed irregularities incident to the special venire will not likely arise upon another trial, and that question is not discussed.
The constitutional question in regard to the admission of the testimony of Plummer will be treated in another pending appeal; therefore it is here pretermitted.
The judgment is reversed, and cause remanded.
Reversed and remanded.
SIMKINS, Judge, absent.