Opinion
No. 34853.
October 19, 1942.
1. HOMICIDE.
In manslaughter prosecution, evidence was sufficient to take case to jury.
2. CRIMINAL LAW.
Where bailiff had, after conclusion of the evidence and before argument of counsel, conversed with a juror who had begun to consider his verdict and tendency of the conversation was to create in juror's mind an idea that it might be his duty to defer to the judgment of the majority in reaching a verdict, conviction of manslaughter was required to be set aside.
APPEAL from the circuit court of Lincoln county, HON. J.F. GUYNES, Judge.
A.A. Cohn, of Brookhaven, and J.W. Cassedy, of Jackson, for appellant.
The court erred in not sustaining the motion for a new trial due to the misconduct and improper separation of the jury.
The conduct and deliberations of the jurors should be free from all suspicion of extraneous or improper influences. It is improper for them to discuss the case or to receive any information about it, except in open court and in the manner provided by law; and misconduct on their part, or misconduct affecting them on the part of the judge, the officer having them in charge, or outsiders, which is, or may be, prejudicial to defendant, will be ground for setting aside a conviction and granting a new trial.
16 C.J. 1079, Sec. 2536.
The officer having charge of the jury, before or after they have retired to consider their verdict, should not hold any communication with them further than to ask them whether they have agreed on a verdict, or to attend to their necessities, and any such communication, if it may have been prejudicial to defendant, will be ground for setting aside the verdict.
16 C.J. 1081, Sec. 2539.
See also Queen v. State, 152 Miss. 723, 120 So. 838; Cartwright v. State, 71 Miss. 82, 14 So. 526; Hare v. State, 4 How. (Miss.) 187; Haley v. State, 123 Miss. 87, 85 So. 129; Allen v. State, 172 Miss. 472, 159 So. 533; Lewis v. State, 109 Miss. 586, 68 So. 785; Wade v. State, 155 Miss. 648, 124 So. 803, 85 A.L.R. 1406; White v. State, 142 Miss. 484, 107 So. 755; Johnson v. State, 106 Miss. 94, 63 So. 338; Skates v. State, 64 Miss. 644, 1 So. 843; Turner v. State, 176 Miss. 862, 170 So. 642; Adams v. State, 175 Miss. 868, 167 So. 59; Wells v. State, 162 Miss. 617, 139 So. 859; Sanders v. State, 150 Miss. 296, 116 So. 433; Bailey v. State, 147 Miss. 428, 112 So. 594; Sullivan v. State, 149 Miss. 412, 115 So. 552; Miss. Code of 1930, Sec. 583.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The mere possibility that a juror has been exposed to outside influences is not sufficient to vitiate a verdict, and from the evidence in this case, it affirmatively appears that no improper influences were brought to bear on the juror; and the court committed no error in overruling the motion to set the verdict aside.
Skates v. State, 64 Miss. 644, 1 So. 843, 60 Am. Rep. 70; Haley v. State, 123 Miss. 87, 85 So. 129, 10 A.L.R. 462; Sanders v. State, 150 Miss. 296, 116 So. 433; Queen v. State, 152 Miss. 723, 120 So. 838; Wells v. State, 162 Miss. 617, 139 So. 859; Adams v. State, 175 Miss. 868, 167 So. 59; Turner v. State, 176 Miss. 862, 170 So. 642.
This appeal is from a conviction of manslaughter and on the evidence the guilt vel non of the appellant was for the determination of the jury. It will not be necessary for us to consider the appellant's complaints of several of the state's instructions for the error said to appear therein will probably be avoided by the District Attorney on the next trial hereof, which we must award for another reason.
The trial lasted several days and the bailiffs in charge of the jury without permission of the trial judge several times erroneously permitted communication between some of the jurors and third persons, but none of the appellant's complaints thereat quite justify the setting aside of the verdict.
The case was being tried for the second time, the jurors having failed to agree on a verdict on the first, resulting in a mistrial. On this trial the evidence was concluded sometime Friday, but the arguments of counsel were not made until the next day and the jury agreed on its verdict sometime Sunday. One of the bailiffs testified that on Friday night he and the juror Boyt were together by themselves for some time in the courtroom around eleven o'clock after the other jurors had gone to bed, that they did not discuss the case on trial but did discuss other cases, particularly the Fugler homicide case, in which the bailiff had been one of the jurors and with which Boyt was familiar. He told Boyt that he "wanted to vote guilty of murder and all the balance wanted manslaughter" and that he "came over to the rest and voted manslaughter." When asked if he did not know that Boyt was voting for acquittal in the Hovas case, he answered "No." The following questions and answers appear:
"Q. Hard to make up his mind? A. That is the only thing I ever heard Essie Boyt say about this case.
"Q. You discussed it that much? A. I said that I didn't discuss it with him. He said that much.
"Q. And you told him you came over to the 11 in the Fugler case? A. Yes.
"Q. And then you left it up to him what he ought to do in this case? A. That was Friday night."
The appellant then offered to prove by the juror Boyt that during the trial and while the jury was deliberating on its verdict, the bailiff, whose testimony has just been quoted, discussed the facts of the case with him, but was not permitted by the court so to do. It will not be necessary for us to consider this ruling for the verdict cannot be permitted to stand in the face of the conversation which the bailiff admitted having with the juror, who then evidently had begun to consider for himself what his verdict should be and its tendency was to create in his mind an idea that it might be his duty to defer to the judgment of a majority of his fellow jurors in reaching a verdict in the case he was then considering.
Reversed and remanded.