Fouts v. The State.

use, the grade, and regrade of streets. But if, after establishing the grade, they block up or cut down the street before one man's house for the benefit of others, doing a substantial injury, the rights of property have been invaded, and the plainest principles of justice require compensation.

We think the whole charge of the court below was as favorable to the plaintiff as the principles of law would justify.

Judgment below affirmed.

BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred.

PHILIP FOUTS v. THE STATE OF OHIO.

Upon the trial of an indictment for homicide, a juror who is challenged for cause, and states upon his voir dire that he has formed an opinion as to the commission of the murder, and as to the guilt or innocence of the prisoner to be tried, should be set aside by the court as an unsuitable juror, although he at the same time further states that he does not think the opinion thus formed will influence his verdict in the case.

Where two or more persons are proved to have been associated together for an illegal purpose, an act or declaration of one of the parties, in furtherance of the common object, and whilst engaged in the prosecution of the gen eral design, may be given in evidence against his associates.

But the declarations and admissions of a party, made in his own behalf, and detailing what he personally intends to do, but not in furtherance of any concerted action with others, are not admissible as evidence against an associate in crime, although he and such associate may afterward engage in and be indicted for the same criminal act to which the declarations and admissions related; and although it may also be proved that, before the making of the declaratious, the two had jointly arranged to commit the iden tical act.

472] *IN error to the court of common pleas of Morgan county.

The plaintiff in error was indicted for the murder of Benjamin P. Scott, and at the March term, 1857, of the court of common pleas of Morgan county, was tried, found guilty and sentenced to be hung on the 27th day of June next following. A writ of error was allowed on the 6th of June, and the execution of the sentence stayed by order of a member of this court. The murder was committed

Fouts v. The State.

on the night of Tuesday, October 28, 1856. The indictment contained a count finding that Jonas Fouts was present, aiding Philip to commit the murder, and concluded by finding the two jointly guilty of the act. They were arraigned together and each pleaded not guilty, and Philip was put upon his trial separately.

During the progress of the trial a bill of exceptions was taken, from which it appears that the counsel for the prisoner raised various questions, of which but a part are noticed by this court.

It appears that one Hickman Bullock, who was called to sit as a juror, having been put upon his voir dire, stated that he had formed an opinion as to the commission of the murder, and as to the guilt or innocence of the prisoner, but that he did not think the opinion thus formed would influence his verdict in the case. And thereupon the counsel for the prisoner challenged the juror for cause, but the court overruled the challenge and permitted the juror to be

sworn.

After the jury was sworn, the counsel for the state introduced as a witness one Jacob Parsons, who testified that some six or eight days previous to the death of Scott, he heard Jonas Fouts say: "If ever Benjamin P. Scott goes to Windsor, he is a dead man-his life is threatened if he goes there.". Philip was present and replied: "That is so." "Both seemed to be not out of humor."

George Parsons, another witness introduced by the state, testified that he had a conversation on Friday previous to Scott's death (which occurred on the next Tuesday night) with Philip, in which Philip stated something concerning a difficulty between Scott and Jonas Fouts' family, and said if he were in his brother's [473 place he would kill Scott, and asked witness if he would not. Witness told him he thought he would, if reports were true. Philip said that Jonas had not spunk enough to kill him, but he had a friend who had-that he would be killed within two weeks-yes, at the next attempt.

Amos M. Scott, a brother of the deceased, was introduced by the prosecutor, and asked to state what Jonas Fouts said to him in Windsor, the day before the murder. This question was objected to by the prisoner, but the court permitted it to be answered, and the prisoner excepted; whereupon the witness made the following

statement:

"My brother Benjamin staid all night at my house on Monday, the 27th. The next morning, I went with him to Windsor; came

Fouts v. The State.

from mill to Thomas' store; my brother went into the store; I went past; saw Jonas Fouts in the alley; Jonas hallooed to me, and asked me where Benjamin was; I told him he staid at my house last night. He then asked me where he was now. I told him, in Thomas' store. He said his brother and he had been looking for him until 10 or 11 o'clock the night before. After some further conversation about our money matters, he told me that if he did not get to see Benjamin, he wished me to tell him not to go out to Rousseau till night, and he and his brother would go along with him. We then parted, and I went up street, to Dr. Abbott's office. Benjamin came in a few minutes afterward. In a few minutes after, Jonas came in. We then started out of the office-Dr. Abbott, Jonas, Benjamin, and myself-and walked across the street, into the alley by the warehouse. Just before we got there, Benjamin showed me a letter he had received from my brother John, in Illinois; handed it to me, and I read it. While I was reading, Abbott went away. After I had finished reading the letter, Benjamin spoke about settling up his affairs, and wanted to get through in time to get to Rousseau that evening. Jonas told him not to go till night, and said if he did, he and Philip would go with him. Benjamin then mentioned the names of persons he wished to settle with that day, and mentioned several places where he was going, and Jonas told him again not to go until night, and he and his brother 474] would go with him. I told *my brother, if he did not start until 7 or 8 o'clock, to come out and stay with me, as it was a dark and lonesome road from Pennsville to Rousseau. Jonas said I need not be alarmed; that he and his brother were going to Rousseau, and would go all the way with him. I then bade my brother farewell, and walked down street; my brother and Jonas walked over toward Blake's saddler-shop."

The counsel for the state then called Moses Geddis as a witness, and asked him to state a conversation which he had with Jonas Fouts previous to the death of Scott. The prisoner's counsel objected, but the court permitted the witness to make the statement asked for. The witness stated that he saw Jonas Fouts in Windsor the Monday before Scott was found dead. Jonas informed witness that he was going to do something, in a few days, that would penitentiary him, and said that witness would hear of it shortly, or in a few days. He paused a moment or two, and then said Benjamin

Fouts v. The State.

Scott ought to be killed, or any other man that had conducted himself as he had.

It is claimed by the plaintiff in error that the court below erred: 1. In overruling his challenge to the juror, Hickman Bullock. 2. In permitting the declarations of Jonas Fouts, made in the absence of the prisoner, to be given in evidence.

Evans & Wood, for the plaintiff in error.

Francis B. Pond, prosecuting attorney, for the state.

BOWEN, J. The 14th section of the "act relating to jurors," statute 489, provides that a petit juror may be challenged for "any cause that may render him, at the time, an unsuitable juror, and the validity of such challenge shall be determined by the court."

Some of the causes which disqualify a juror from serving are pointed out in the statute; as where he has been an arbitrator of the same controversy, or has an interest in the cause, or has an action depending between him and the party, or has formerly been a juror in the same cause, or where he is the party's master, servant, *counselor, steward, or attorney, or is subpenaed in the cause [475 as a witness, or where he is akin to either party. Proof of the existence of any one of these causes will exclude a person from serving as a juror. But it was not deemed safe to stop with this enumeration of causes, and therefore authority is given to challenge for any cause touching his competency, and the court must decide upon the validity of the objection which is raised, and if an incompetent juror be permitted to serve, after he is challenged, the question can be reviewed on error, and the verdict be set aside.

Any previously formed opinion upon the question to be tried, or any partiality or prejudice against a party whose interests are involved, which will be likely to lead to conclusions unfavorable to him, in the determination of the issue, are causes which will warrant the challenging of a juror, and require his exclusion from the panel, as being unsuitable to serve. The jury should enter upon the trial with minds open to those impressions which the testimony and the law of the case ought to make, not with those preconceived opinions which will resist those impressions. United States v. Burr, 1 Term, 415. How was it with the juror, Hickman Bullock? He had formed an opinion as to the commission of the murder, and as to the guilt or innocence of the prisoner. But he had confidence

Fouts v. The State.

in his ability, notwithstanding, to hold the scales of justice even— to hear dispassionately, and to decide impartially and justly the prisoner's case. His opinions, though to this dangerous extent, already formed, he did not think would influence his verdict in the case, and he was prepared and willing to make the experiment of attempting to resist such preconceived opinions and bias of mind, if he should be directed to serve. It was said by Judge Marshall, on the trial of Aaron Burr, that if the opinion formed, be on a point so essential as to go far toward a decision of the whole case, and to have a real influence on the verdict to be rendered, the distinction between a person who has formed such an opinion, and one who has, in his mind, decided the whole case, appears too slight to furnish the court with solid ground for distinguishing between them. Bullock's condition of mind was not adapted to a disinter476] ested and impartial canvassing *of the testimony. As an upright man, he might struggle to promote the finding of a just verdict, but however firm his principles and moral strength of purpose might be, there was still danger to be apprehended in his capacity to go through the case, uninfluenced by the notions which he had already conceived. The prisoner was not compelled to brave the consequences of submitting to the determination of a trier who might, perchance, be swayed by opinions which he had made up before hearing the evidence. We think the juror ought to have been set aside for incompetency.

2. Did the court err in permitting the declaration of Jonas Fouts, made in the absence of the prisoner on trial, to be given in evidence to the jury?

Where several persons conspire to do an unlawful act, and the connection and purpose be first made out, to the satisfaction of the court, the acts and declarations of one, who afterward engaged in the prosecution of the criminal design, and in furtherance of it, may be received against a co-conspirator, in the same transaction. A common case, given in the books, is of rioters. 10 Pick. 497. But the rule extends equally to all cases where a combination, among several individuals, to commit a wrong, is once established. Each then becomes responsible for the declarations as well as the acts of the others, which may be spoken or done in furtherance of the common purposes. Waterbury v. Sturdevant, 18 Wend. 360; U. S. v. Gooding, 12 Wheat. 468; Am. Fur Co. v. United States, 2 Pet. 363.