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TRIAL OF JOHN W. WEBSTER.
a candid judgment, upon a full hearing of the testimony. If one had
formed, what in same sense might be called an opinion, but which yet
fell short of exciting any bias or prejudice, he might conscientiously dis-
charge his duty as a juror. He then referred to the indictment to inform
the jurors what the nature and character of the charge against the pris-
oner was, which they were to be empanelled to try. They were also
informed that the law looked to the forming and to the expression of
an opinion as distinct acts, each of such a character as would be likely
to influence his future judgment, incline him to maintain such opinion,
and thus affect his impartiality.
The question was then proposed in this form: "Have you expressed,
or have you formed any opinion upon the subject matter now to be
tried; or are you sensible of any bias or prejudice therein?"
The second juror having answered, ,that he had both formed and
expressed an opinion, in the sense explained by the Court, he was set
aside, and the clerk proceeded to call the third. He having been passed
by the prisoners and answered the statute questions proposed to the
former juror, in the negative, was then interrogated by the Chief Justice,
-(upon the motion of the Attorney General,)-whether he had any such
opinions as would preclude him from finding any defendant guilty of
an offense punishable with death?
The Chief Justice, in reference to this inquiry, quoted and commented
on the 6th section of the 137 chapter of the Revised Statutes: "No per-
son, whose opinions are such as to preclude him from finding any defend-
ant guilty of an offence punishable with death, shall be compelled or
allowed to serve as a juror, on the trial of any indictments for such an
offence."
The third juror, Mr. Thomas Barrett, having answered this inquiry
in the negative, the Court directed that he be sworn in chief; whereupon
the clerk administered to him the following oath, prescribed by the 137th
chapter, 7th section of the Revised Statutes: "You shall well and truly
try, and true deliverance make, between the Commonwealth and the
prisoner at the bar, whom you shall have in charge, according to your
evidence; so help you, God!"
Mr. Benjamin H. Greene, (the ninth juror of the pane-1 as finally made
up,) stated in reply -to the inquiry in regard to his opinion upon finding
a verdict in a case punishable with death, that he was opposed to capital
punishment; but that he did not think that his opinions would inter-
fere with his doing his duty as a juror:-that as a legislator, he should be
in favor of altering the law, though he believed he could execute it, as a
juror, as it was.
The Chief Justice, after conferring with the other judges, intimated
to him that the state of his opinion was a matter which he must decide
for himself; that, as he had stated it, the Court did not consider him
disqualified. Mr. Greene, after some hesitation, took the oath.
After the. other jurors bad been sworn, and when the name of Mr.
Greene was called to take his sea-t upon the panel, he stated to the Court
that he thought it inconsistent for him to serve as a juror, holding the
opinions he did, and should prefer being let off. The Chief Justice
remarked that it was a question for him to decide, whether his opinions
would prevent him giving an unbiased verdict. Mr. Greene replied that
he thought he could give an unbiased judgment; yet he had a sympathy
for the prisoner and his family, and feared that his opinions in relation
to capital punishment might influence others of the jury.. The Court,
upon conference, ruled that his case did not come within the statute,
and he was not excused.
Of the whole list drawn, seven were set. aside for having formed or
expressed an opinion, three for having opinions against capital punish-
ment, and fourteen were peremptorily challenged by the prisoner. Five
names remained on the list when the panel was completed. The names
of the jury, as finally impanelled, were,
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