Opinion
No. 37262.
October 10, 1949.
1. New trial — juror as a witness on motion for — when no objection made as to his competency.
When on a motion for a new trial a juror is introduced as a witness and no objection is made as to his competency as a witness nor as to his testimony, court will not consider on appeal an assignment raising those questions.
2. Criminal procedure — coercive communication to jury as coming from trial judge — constitutional law.
When a bailiff stated to a jury, which had then been deadlocked for twenty-three hours upon the issue of conviction in a capital case, that the judge had said that the jury would be kept together until they reached a decision even if until they rotted or words to a similar effect and shortly thereafter the jury returned a verdict of guilty, the communication will be considered as sufficient to have exerted a coercive influence upon the jury, presumably prejudicial, and since it operates to impair the constitutional right of a fair trial and due process, it cannot be deemed harmless error, and this without regard to the fact that the trial judge did or did not make or authorize any such statement.
Headnotes as approved by Alexander, J.
APPEAL from the circuit Court of Washington County; ARTHUR JORDAN, Judge.
Dyer Campbell, for appellant.
A juror is a competent witness to prove extraneous facts which may have influenced the verdict such as misconduct, improper acts or communications of the officer in charge of the jury. 53 American Jurisprudence under the heading Trial, at pages 772-775; Nelms v. State, 13 S. M. (21 Miss.) 500, (1850); Shaw v. State, 79 Miss. 577, 31 So. 290.
Improper communications to the jury are presumed to be prejudicial and, if not rebutted by the State, necessitate reversal. Shaw v. State, supra; 39 Am. Jur. 120, New Trial, Sec. 104; Pepper v. State, 27 So.2d 842 (Miss.).
Where it is made to appear that anything has occurred which may have improperly influenced the jury, an accused will be granted a new trial although he may appear to be guilty. 39 Am. Jur. 118, New Trial, Sec. 103; 53 Am. Jur. 651, Trial, Sec. 905; Wade v. State, 155 Miss. 648, 124 So. 803, 85 A.L.R. 1406 (1929); Lewis v. State, 109 Miss. 586, 68 So. 785; Allen v. State, 172 Miss. 472, 159 So. 533 (1935).
George H. Ethridge, Assistant Attorney General, for appellee.
The killing, as I view it, was one of peculiar atrocity and the evident disregard by the appellant of the rights of other occupants of the house and disregard for the law is clear. There is nothing in the way of admitting or rejecting evidence or in the instructions and to reverse the case here would be to do so merely because of a technical error in ruling on the misconduct of the deputy. Burns should certainly have been censured, for bailiffs in attendance on a jury in felony cases should not be permitted to try to influence the jury in their verdict or to joke about the matter which requires such solemn deliberation. I, therefore, suggest that the case should be affirmed regardless of Deputy Burns' jocular statements, if they were indeed jocular.
Appellant was convicted of murder, the judgment carrying a sentence of life imprisonment.
The jury retired at about 5 p.m. to consider their verdict. At about 4 p.m. the next day they returned a verdict of guilty with disagreement as to the punishment.
A motion for a new trial was filed based upon the alleged misconduct of the bailiff in stating to the jury, after they had reported that they were hopelessly deadlocked, "that the trial judge had stated that he had nothing to do until the next term of court and that as far as he was concerned they could stay there until they rotted".
If such report was made by the bailiff, it is immaterial whether the trial judge was correctly quoted. The only witness upon the motion was a member of the trial jury who testified as follows: "The judge said he could not do us any good, he couldn't come in and talk to us about the matter in any way, said he had from now until the convening of the next court to rest and wait on us until we made our decision". In answer to the leading question: "Did you not tell me the bailiff said that as far as the court was concerned you can stay there until you rotted. Was that said?" He replied "I expect it was". In reply to a further question "But when Mr. Burns returned after having been requested by you to contact the court did he or did he not say the judge was available and that he would not come in the jury room to talk with you all but as far as the judge was concerned you could stay there until you rotted", he replied, "Something to that effect".
(Hn 1) There was no objection to the competency of the juror as a witness nor to his testimony. We need not therefore, consider application of the principle set out in Nelms v. State, 13 Smedes M. 500, 21 Miss. 500, 53 Am. Dec. 94 and Shaw v. State, 79 Miss. 577, 31 So. 290, which recognizes the competency of a juror to testify to extraneous facts or instances of misconduct of others disconnected from their own deliberations.
(Hn 2) At the time of the communication by the bailiff, the jury, after twenty-three hours of deliberation, stood eleven to one for a verdict of guilty of murder. Shortly thereafter they returned such verdict. Regardless of the exact language of the communication there is sufficient of its substance to constitute a coercive influence upon the jury. Wade v. State, 155 Miss. 648, 124 So. 803, 85 A.L.R. 1406. Such influence is presumably prejudicial. Green v. State, 97 Miss. 834, 53 So. 415, and, since it operates to impair a constitutional right of fair trial and due process, it cannot be deemed harmless error. McCulloch v. State, 194 Miss. 851, 13 So.2d 829.
We take occasion to repeat that our decision does not of necessity constitute a finding of misconduct by the trial judge since it is immaterial whether the communication was actually made by him. The bailiff did not testify to rebut the statement of the juror.
It was error to overrule the motion for a new trial.
Reversed and remanded.