224
THE GREEN BAG
lottesville was tried for murder of his wife, convicted and ultimately hung. In this case "before the jury was sworn, and in response to a request of one of the jurors, the court stated to the members of the jury that they might be permitted to read such por tions of the daily newspapers as in no way related to the trial." No exception was taken to this instruction, and it did not appear that any of the jurors had disre garded it. On appeal, counsel for defend ant urged that a new trial ought to be granted on the ground that this instruction was an improper one. On this subject the court said (p. 631): "We think it is the safer and better practice to exclude news papers from the jury. They are called upon to exercise the most sacred duty which can devolve upon a citizen, and in its discharge they must make such personal sacrifice as is necessary to its due performance; but un der the circumstances of this case no re versible error is disclosed in this respect." In the case of Bullinger v. The People, 95 Ill. 395, 400, counsel for plaintiff handed one of the jurymen a newspaper. Subse quently it appeared that one of the jury was reading another newspaper containing an article prejudicial to the defendant. To this the counsel for the defendant objected and called the judge's attention to the mat ter. The judge then privately suggested to the counsel that as the paper was already before one of the jurymen it would perhaps be best not to over-emphasize the import ance of the matter by calling the attention of the jury generally to it. No exception was taken. Held that defendant by the course pursued waived all objection to the reading of the newspaper. In the United States Courts it is held that where jurors have seen newspapers dur ing the trial containing accounts of the trial, the question is whether they have read any thing prejudicial to the defendant. If they did not there is no ground for a new trial. United States v. Reid, 12 How. 361. United States v. Gilbert, 2 Sumn. 19.
The same rule prevails in New York, People v. Gaffney, 12 Abb. Pr. U. S. 36, affirmed, 50 N. Y 416. In the McCue case, supra, these further facts appeared. One of the jurors when impaneled was asked if he had formed an opinion on the case, to which he replied, " I formed an opin ion on the newspaper evidence." He was then asked, " In your present state of mind could you go on that jury starting out with the presumption of innocence on your mind?" A. "I could not say that I could sir, for the reason that I have read this evidence. Naturally there is some impression on my mind but I cannot say that it is biassed or prejudiced." The juror was challenged by defendant, but accepted by the court. In regard to this matter the court said on appeal: "The cases upon this subject are almost without number and are not to be reconciled ... If the courts take an ex treme position upon this subject, and hold that every opinion shall work a disqualifi cation for service as a juror, the administra tion of justice will be confided not to the most intelligent but to the most ignorant of our citizens." The court held the juror properly admitted. The same rule prevails in New York. Although a witness may have read the newspapers and formed an opinion as to defendant's guilt, it is not a ground for challenge if the juror's mind is still open to render a verdict on the evidence presented to him. People v. Hayes, i Edm. Sel. cases 582; Peoples. Thompson, 41 N. Y. i; People v. Welsh, i Cr. Rep. 486. This is the general trend of authority. Contra McHugh v. State, 38 Ohio St. 153. In Pennsylvania the law is to the same effect unless the opinion of the venireman is based upon his reading of the testimony of a former trial in which case he is disquali fied even if his opinion on the case is not definite. Allison v. Com., 99 Pa. St. 17, 32, 33. In Ohio the law is the same as that of Pennsylvania by statutory provision. Fra
