Opinion
No. 27600.
March 4, 1929.
1. CRIMINAL LAW. Decision of trial court on conflicting evidence, as to whether juryman had formed or expressed opinion before being accepted, will not be disturbed.
Where conflicting evidence has been offered, as to whether a juryman had formed or expressed an opinion as to the case before being accepted, the decision of the trial court on such conflict in the evidence will not be disturbed on appeal.
2. CRIMINAL LAW. Affidavit by defendant or attorneys and motion for new trial, alleging lack of knowledge of juror's disqualification, is necessary to predicate error thereon.
In order for a defendant to raise the question as to whether a juror accepted in the trial of the case had formed or expressed an opinion prior thereto, and the defendant did not know thereof, the defendant and his attorneys should each make affidavit and a motion for a new trial, alleging that they did not know of such disqualification, or such expression of opinion prior to accepting said juror.
3. CRIMINAL LAW. Juror's separation during deliberation on felony trial does not require reversal, unless there was communication with outsiders.
The mere fact that a juror separated himself from his fellows during the deliberation on the trial of a felony case will not cause a reversal of the case, where it affirmatively appears that such juror did not have opportunity to come in contact with outsiders, and did not have any communication with any other persons during such trial.
APPEAL from circuit court of Washington county, HON. S.F. DAVIS, Judge.
H.P. Farish, S.B. Thomas and James W. Cassedy, for appellant.
The case should be reversed because of the separation of the juror Roy Henry, from the other jurors and bailiffs. We submit that it is the general law in homicide cases "that upon a separation, misconduct and abuse will always be presumed, and the burden is therefore upon the state to show that the separation was without prejudice to the accused, the presumptions being rebuttal by clear and convincing proof. These cardinal rules should control the courts in dealing with the conduct of the jurors, and especially in cases where a defendant is on trial for his life." 16 R.C.L. 309. A review of the Mississippi cases from Hare's case, 4 How. 187, to the present reveals that the law of separation of jurors has been somewhat modified, but the rule has not been materially changed. Haley's case, 123 Miss. 87, 85 So. 129; Skates case, 64 Miss. 644; McCann's case, 9 S. . M. 465; Nelms v. State, 13 S. M. 500; Bole's case, 13 S. M. ___; Rigg's case, 26 Miss. 51; Organ's case, 26 Miss. 78; Woods v. State, 43 Miss. 364; Durr v. State, 53 Miss. 425.
Rufus Creekmore, Assistant Attorney-General, for the state.
After the jury had returned its verdict, the defendant made a motion for a new trial, alleging as grounds therefor that one of the jurors who tried the case had formed and expressed an opinion as to the guilt of the defendant, and that this same juror, after the testimony had been concluded, separated himself from the other jurors and read a magazine. In addition to the fact that the court passed upon this disputed question of fact and decided it adversely to the contention of the defendant, it will also be noticed that the defendant has not followed the procedure which is necessary in making motions of this kind. In the cases of Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304, and Salmon v. State, 118 So. 610, it was held that a motion for a new trial on the ground of disqualification of one of the jurors should not be granted unless supported by the affidavit both of the defendant and his counsel that they were each ignorant of the incompetency of the juror when he was accepted. In this case there is no such affidavit, either by the defendant or by either of his counsel, nor do either of them take the stand to show that they were in fact ignorant of the juror's incompetency when he was accepted.
With reference to the separation of this juror from the other jurors, the testimony shows that the jury was kept during the night on the second floor of the courthouse; they were in the charge of two bailiffs and no one else was in the courthouse, except the janitor and a trusty from the jail who was used to run errands. The accommodations were very inadequate. The beds were placed in the main courtrooms under the electric fans, but the juror Henry, being unable to sleep under the fans, went across the hall into the superintendent of education's office, where he sat and read during the night. No effort is made to show that the juror communicated with anyone, either directly, by telephone, or otherwise. The testimony, on the contrary, conclusively shows that no communication was had with him by any one. Counsel base their argument on this proposition on the theory that because the juror was separated from the balance of the jury that he had the opportunity to communicate with the outside persons, and that since the opportunity was present, it must be presumed that he availed himself of it to the prejudice of the defendant. It is manifest that such an argument cannot prevail. See Skates v. State, 64 Miss. 644, 1 So. 834; Cunningham v. State, 94 Miss. 228, 48 So. 297; Johnson v. State, 106 Miss. 94, 63 So. 238; White v. State, 142 Miss. 484, 107 So. 755; Bailey v. State, 147 Miss. 428, 112 So. 594; Sullivan v. State, 149 Miss. 412, 115 So. 552; Sanders v. State, 150 Miss. 296, 116 So. 433.
The appellant was indicted by the grand jury of Washington county for the murder of T.E. Fussell; convicted of manslaughter, and sentenced to the penitentiary for eight years. It will not be necessary to set out in detail the facts of the killing. One of the assignments of error is as to the insufficiency of evidence to justify a conviction. We think it sufficient to say that we have examined the evidence, and it is abundantly sufficient to sustain a conviction.
It is also assigned for error that one Roy Henry made a statement to Policeman Gibson, traffic officer, before he was summoned on the jury, to the effect that he thought the appellant was guilty and should be hanged, and that this statement was unknown to the appellant or his attorneys when the jury was accepted. The juror Roy Henry denied making any such statement. Besides, there was no affidavit by the defendant, or his attorneys, that they had no knowledge of this statement prior to submission of the case to the jury. This should be done in order to predicate error. Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Salmon v. State (Miss.), 118 So. 610.
It was also alleged that, while the jury was deliberating, or after the jury had retired to consider their verdict, the juror Henry withdrew himself from the company of his fellows at night and went into the superintendent of education's office in the courthouse, which adjoined the courtroom in which the jurors were sleeping for the night, and there was a telephone in such office. It appears that the jurors were sleeping in the courtroom, and an electric fan was being operated therein, and that the juror Henry could not sleep under a fan, and that he got up and went into the superintendent of education's office, it being night, and such office unoccupied, and that the bailiff discovered that one of the jurors was absent and went into the office, and Henry stated to him that he could not sleep under the fan, and that he went into the superintendent's office and read during the night. He also testified that he did not sleep, but that he saw no one, and had no communication with any one except the bailiff.
It is settled law in this state that the mere fact of separation alone is not sufficient to reverse, where there has been no opportunity for a juror to converse with other people, and where, in fact, no communication with any other persons is shown. If the juror should separate and should come in contact with people in such way as to make it appear that he has had opportunity to communicate with others, then the verdict would be set aside. But where it is affirmatively shown that he did not come in contact wth other persons, and had no communication with other persons, the verdict will not be set aside by the mere fact of separation. Skates v. State, 64 Miss. 644, 1 So. 834; Cunningham v. State, 94 Miss. 228, 48 So. 297; Johnson v. State, 106 Miss. 94, 63 So. 238; White v. State, 142 Miss. 484, 107 So. 755; Bailey v. State, 147 Miss. 428, 112 So. 594; Sullivan v. State, 149 Miss. 412, 115 So. 552; Saunders v. State, 150 Miss. 296, 116 So. 433.
Affirmed.