Brown v. State

60 Miss. 447 | Miss. | 1882

Chalmers, J.,

delivered the opinion of the court.

The evidence raised and submitted to the jury the question whether the deceased was slain in necessary self-defence as testified by the accused and his son, or whether it was a case of lying in wait and assassination; and by their verdict they have declared that the latter was its true character. We cannot say that they were in error.

The only error of law presented which seems to demand consideration is with regard to the juror Clayton.

After the verdict had been rendered, a brother of this juror made affidavit that the juror, before he was summoned, had carefully examined the scene of the homicide and given it as his opinion that it was a case of assassination, and this fact affiant stated he had not communicated to the accused or his counsel until after the jury had been empanelled and sworn. Waiving a consideration of the question whether it was not the duty of the accused instantly, on the receipt of this information, to have made it known to the court, and thus have avoided the appearance of taking the chance of a favorable result, if the verdict should be favorable, and of setting it aside, if it should be adverse, there are two fatal objections to his claim of reversal here. Neither he nor his counsel made affidavit that they were ignorant of the unfavorable bias of the juror before he was sworn, and although the brother had sworn'that he had not communicated such infoi-mation, the possibility of its acquisition from some other source was not negatived. The practice of granting new trials on. account of the incompetency of jurors discovered after verdict is so dangerous and so liable to abuse, that many courts deny it altogether, and those which permit it, agree that it should be surrounded by every possible safeguard.

It may be assumed that the person who has been convicted will always be ready to make the requisite affidavits on his own behalf, and will generally be able to find some one, who, for love or money, will make the necessary assault upon the integrity of some member of the jury. The mouths of the jurors being closed, there is the greatest possible danger that injustice may be done to them, and the proper punishment which the law provides for the criminal, be defeated.

As ou'e safeguard against this, it is essential that both the defendant and his counsel make affidavit that they were both alike ignorant of the incompetency of the juror when accepted.

It no where appears that the juror in this instance was examined on his voir dire, and that when so examined he disclaimed having formed or expressed an opinion on the guilt or innocence of the accused, and the authorities are uniform to the effect that unless this is made affirmatively to appear, a new trial will not be awarded. Thomp. & M. on Juries, sect. 302, and authorities cited.

Affirmed.