dissenting.
I believe this is the only opinion by a court of last resort that reverses on statement of counsel without any factual basis in the record.
The statement in the majority opinion, that the question presented is whether exclusion of teachers from the jury drum prevented Colvin from having a fair trial, misses the point. The question in my view is whether there has been a showing in the record that teachers were, in fact, excluded.
The purported “avowal” is not an avowal by any test in accordance with the Rules, past or present. The witness was not present in court and his evidence was not offered. I cannot accept the proposition that the statement of counsel as to what a witness would testify, if present, rises to the stature of having any probative value at all.
The statement in the majority opinion that the “avowal” was uncontroverted is meaningless. This case was tried by a special judge. There is nothing in the record to suggest that he or the prosecution had any knowledge of the purported exclusion by the regular presiding judge.
If, in fact, teachers were excluded from the jury drum on direction of the presiding judge of the district, it would have been a simple matter to adduce proof of this fact.
I do not believe we should reverse a case on statement of counsel absent any proof of probative value to support the statement.
CLAYTON, J., joins this dissent.