dissenting:
I am unable to concur in the reversal of the judgment in this case. The judgment is reversed upon the alleged ground that Bontecou and Clark were not impartial jurors. In the abstract of the record prepared and presented to the Court by counsel for plaintiff in error, I find in the examination of Bontecou the following: “ Do you believe, with your own knowledge of your own mental and moral make-up, that, if sworn as a juror in this solemn duty, you could render a fair and impartial verdict in this case, based exclusively upon the law and the evidence? A. I think I could. * * * Sitting here as a juryman would you have inclination to find this verdict otherwise than according to the evidence ? A. Why, I think that I could decide according to the evidence, I feel in this way about it: not having heard anything except the newspaper evidence I have a prejudice as it is. If there was evidence introduced to show that these parties were innocent, I think that I could give them the benefit of the doubt in this case and decide according to the evidence. * * * You mean by that word, inclination, that you have from your newspaper reading, of course, acquired some impression which may be unfavorable ? A. Yes, sir, that has expressed it. Would those opinions or impressions in any manner influence you here now, when you are sworn here to the solemn duty to try this case on the evidence ? A. Ho, sir. You are certain of that ? A. Positive of that.”
In the same abstract there appears, in the examination of the juror Clark, the following: “ I have an opinion as to the guilt or innocence of the defendants. It is based upon what I have read in the newspapers. * * * If taken as a juror, notwithstanding my opinion derived from newspaper reading, I should render a fair and impartial verdict in this case based upon the law and the evidence. * * * I have read the testimony that was given at the coroner’s inquest, the testimony heard at Winnipeg, what purported to be the testimony given before the grand jury in this city in June and July. * * * I think I have expressed opinions as to the guilt or innocence of the men on trial. * * * I have an opinion as to whether the doctor was tried by Camp 20 last spring; also an opinion whether he was put to death in pursuance of the finding of that committee. I have a prejudice against the Clan-na-Gael society only as it has been brought to my mind in reading this evidence. * * * You have stated, that, if taken as a juror in this case, you could render a fair and impartial verdict based exclusively on the law and the evidence notwithstanding your opinion? Ans. Yes, sir; I have no doubt about that. Would you treat the testimony of members of Camp 20 of the Clan-na-Gael the same as, you would any other witnesses up to the time that it appeared that the Clan-na-Gael or that camp had anything to do with this matter ? Ans. I may have an opinion, prejudice against them, against their views. * * * Is it upon the understanding that it is an unlawful or criminal combination ? Ans. Yes, sir. Unless that appeared in the evidence, would you allow it to influence your consideration of the evidence here as a juror, or your verdict as a juror ? Ans. I think I would be able to cast that aside and give my verdict according to the evidence, the law and the evidence in the case. * * * I shall certainly try to throw aside prejudice and give my decision on the law and the evidence as presented to me. * * * Don’t you believe that sitting here as a juryman, feeling the full responsibility as a juror, trying your fellow-citizens for a grave matter, where their lives and liberty are in jeopardy, that you would act according to these legal principles, and render a fair and impartial verdict, based alone upon the evidence and the law. What do you say to that? Ans. I think I could. Yes, sir, I should try to.”
The majority opinion shows that other answers than those above quoted were made by the jurors Clark and Bontecou, but those here set forth are sufficient to establish their competency to sit as jurors. When plied with questions they did not deny that they had received impressions and formed opinions as to the guilt or innocence of the accused. Their frankness in revealing their thoughts and feelings in regard to the issues involved, instead of disclaiming all bias of any kind, bespeaks their conscientiousness and honesty of purpose. Whenever the questions addressed to them brought their attention back to the foundations of their impressions and opinions and to the effect thereof upon their mental conditions, two facts were most clearly disclosed: first, that the impressions received or opinions formed by them were such only as were based upon newspaper statements; second, that they believed in their own ability to fairly and impartially render a verdict in the case in accordance with the law and the evidence.
At the present day and in this country there is a general diffusion of intelligence among the people. Nearly everybody, who knows how to read, reads the newspapers. When a great crime is committed which excites public interest, there is scarcely a man in the community where it occurs, who does not know of it, and read about it, and form some sort of an opinion in regard to it. If men, who read, and are affected by, newspaper accounts of the commission of crime, are excluded from the jury box, then trial by jury might as well be abolished. In recognition of the difficulty of obtaining jurymen in criminal cases who do not read newspapers, and do not receive impressions from what they read, the legislatures of many of the States have passed laws upon this subject.
The statute of Illinois provides as follows:
“Provided further, That it shall not be a cause of challenge, that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged, if such juror shall state, on oath, that he believes he can render an impartial verdict, according to the law and the evidence.
“ And provided further, That in the trial of any criminal cause, the fact that any person called as juror has formed an opinion or impression, based upon rumor or newspaper statements (about the truth of which he has expressed no opinion) shall not disqualify him to serve as a, juror in such case, if he shall, upon oath, state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement.”
It was held by the Supreme Court of the United States in Spies v. Illinois, 123 U. S. 131, that this statute was not repugnant to the constitution of the United States, nor to the constitution of Illinois, which guarantees to the accused party in every criminal prosecution “ a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”
Bontecou and Clark do not state, that they ever expressed any opinion as to the truth of the newspaper statements from which they derived their impressions. This being s.o, and inasmuch as the only impressions or opinions formed by them were based upon newspaper statements, and inasmuch as they both stated upon oath that they believed they could fairly and impartially render a verdict in accordance with the law and the evidence, and inasmuch as the trial judge showed his satisfaction with the truth of their statements in this regard by permitting them to act as jurors in the case, why were they not qualified to take their seats in the jury box? Ought it to be decided, that they were disqualified when they held no other opinions than those, which, by the express terms of the law, are declared to be insufficient to disqualify them ?
The mere fact, that a juror has expressed an opinion as to the guilt or innocence of the accused, when such opinion is based only on rumor or newspaper statements, does not necessarily disqualify him. (Smith v. Eames, 3 Scam. 76; Gardner v. The People, 3 Scam. 83; Baxter v. The People, 3 Gilm. 376; Thomas v. The People, 67 N. Y. 220; Reynolds v. The United States, 98 U. S. 145, 156; Spies v. Illinois, 123 U. S. 131; People v. McGonegal, 136 N. Y. 62). The test question as to the fairness and impartiality of the juror is, whether his verdict will be based only upon the account which may be given at the trial by witnesses under oath. (Spies v. Illinois, supra.) It sufficiently appears in this case from the examination of the above named jurors, that they would base their verdict only upon the account which should be given by the witnesses under oath at the trial.
The fact, that one of the jurors read in a newspaper what purported to be testimony taken at a coroner’s inquest or before a grand jury, did not disqualify him. Such publications of what purports to be evidence come under the designation of “ newspaper statements ” as those words are used in the statute. It was so expressly decided in Hopt v. Utah, 120 U. S. 430, where the Court say: “We think that evidence, or what purports to be evidence, printed in a newspaper, is a “ statement in a public journal ” within the meaning of the statute; and that the judgment of the court upon the competency of the juror in such cases is conclusive.”
It does not seem to me, that there was any such prejudice on the part of the juror Clark against the Clan-na-Gael Society as amounted to a disqualification. He expressly states, that his prejudice against that organization was based solely upon the supposition, that a committee of one of its branches known as Camp 20 had assumed to try Dr. Cronin, and that he was put to death in pursuance of the finding of that committee. If the. Clan-na-Gael Society was a murderous organization, sentencing men to death who had incurred its anger and executing such unlawful sentences in secret, then a prejudice against it was nothing more than a prejudice against murder. Prejudice against crime does not disqualify a juror. (Spies v. The People, 122 Ill. 1, and cases cited). Clark said upon his examination, that, unless the Clan-na-Gael Society should appear from the evidence to be an unlawful or criminal society, he would be able to cast aside his prejudice against it and give his verdict according to the law and the evidence.
I can see nothing objectionable in the examination of the jurors by the trial Court. The law requires that Court to be satisfied of the truth of the statement made by the juror, that he believes he can fairly and impartially render a verdict in accordance with the law and the evidence. Here, the questions addressed by the trial judge to the jurors show, that he was making a conscientious effort to satisfy himself of what the statute made it his duty to be satisfied. Challenge for favor is based upon the bias or prejudice of the juror, and was originally ascertained by triers from whose decision there was no appeal. In this State challenges for favor are submitted to and passed upon by the trial judge. Though some of the answers of a juror taken separately may perhaps establish a disqualification, yet if the effect of all that he says is to show that he is a proper juror, he ought not to be excluded. (Phelps v. The People, 72 N. Y. 363). Under the statute above quoted, the trial court is clothed with the power of deciding judicially, from all the answers of the juror in connection with his statement of his belief in his own ability to render a verdict in accordance with the law and the evidence, whether or not such juror is really capable of fairly and impartially trying the case notwithstanding the opinions which he entertains, The determination of the trial Court in this matter ought not to be disturbed except for manifest error. Nothing less than a finding contrary to the weight of the evidence, amounting to a palpable abuse of judicial discretion by the trial judge, should authorize a reversal. It does not appear here, that the statements of the jurors, which the court below found to be true, were, as matter of fact, untrue. (The State v. Cunningham, 100 Mo. 382).
These views are but a repetition of those expressed in reference to the statute now under consideration by the Supreme Court of the United States in Spies v. Illinois, supra, where Mr. Chief Justice Waite used the following language: “In Reynolds v. The United States, 98 U. S. 115-156, we said that, upon the trial of the issue of fact raised by a challenge to a juror, in a criminal case, on the ground that he had formed and expressed an opinion on the issues to be tried, the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The ease must be one in which it is manifest the law left nothing to the conscience or discretion of the court.’ If such is the degree of strictness which is required in the ordinary cases of writs of error from one court to another, in the same general jurisdiction, it certainly ought not to be relaxed in a case where, as in this case, the ground relied on for the reversal by this court of the judgment of the highest court of the State, is that the error complained of is so gross as to amount in law to a denial by the State of a trial by an impartial jury to one who is accused of crime. We are unhesitatingly of opinion that no such case is disclosed by this record.” In determining the competency of a juror under the circumstances here detailed, the trial judge has a right to take into consideration not only the statements made by the juror but also his appearance and bearing while subject to examination. Of course the reviewing court can know nothing about the appearance or bearing of the juror. (Thomas v. People, supra).
It will not do to say, that the fairness and impartiality of the juror are to be determined solely by such answers as he makes to the questions addressed to him in relation to his impressions or opinions without reference to his own estimate of the effect of those impressions or opinions upon his capacity to decide fairly and impartially. The statute expressly empowers him to state under oath his belief as to his ability to fairly and impartially render a verdict in accordance with the law and the evidence. A conscientious juror could not state, that he had the belief referred to in the statute, if his existing opinions had conclusively biased his mind against the accused. A belief is a condition of mind ; and a statement of belief is necessarily a statement of the effect, which certain facts or opinions have had in producing that condition of mind. (Lycoming Fire Ins. Co. v. Ward, 90 Ill. 545; Stokes v. The People, 53 N. Y. 171; Balbo v. The People, 80 N. Y. 484; Cox v. The People, 80 N. Y. 512; Abbott v. The People, 86 N. Y. 460; Corneth v. The People, 92 N. Y. 85; People, ex rel. Oyer & Term., 83 N. Y. 436; People v. Otto, 101 N. Y. 690; People v. Mahoney, 18 Cal. 183; Leach v. People, 53 Ill. 311; Albrecht v. Walker, 73 Ill. 69; Thomson v. People, 24 Ill. 60; Collins v. People, 48 Ill. 145; Wilson v. People, 94 Ill. 299; Kroer v. People, 78 Ill. 294; Curley v. Com, 84 Pa. St. 151). If a juror’s statement as to his own mental condition when he expresses his belief in his ability to decide the case according to the law and the evidence cannot be accepted as showing his fairness and impartiality, then his statement as to his mental condition when he says that he has a prejudice against the prisoner ought not to be accepted as showing his unfairness and partiality.