1 Morr. St. Cas. 991 | Miss. | 1872
Lead Opinion
The plaintiff in error was indicted, together with his son, Gaston E. Browning, in the circuit court of Sunflower county, for the murder of John W. Neal. The venue was changed to Holmes circuit court, where the parties were tried separately, and were both found guilty of murder. The case of Gaston E. Browning has recently been decided here, and the judgment reversed, upon grounds which are stated in the opinion of the court.
After the verdict, in the case now under consideration, the prisoner moved to set it aside and for a new trial, upon sundry grounds, which motion, being overruled, a bill of exceptions was taken, embodying all the evidence adduced on the trial, and the .rulings of the court in the cause; and, upon these arise the questions, which are here to be considered.
We will proceed to examine the several grounds, upon which it is insisted that the verdict should be set aside, the judgment reversed, and a new trial granted.
1. It is said, that it was error not to grant the continuance moved for by the prisoner on his affidavit setting forth material facts, which he could establish by certain witnesses, who were absent, and that it was not sufficient, that the prosecution admitted the facts, as stated, to be true. This is no ground of error. Domingues v. State, 7 S. & M., 475. Under the admission, the prisoner was entitled to treat the facts stated in his affidavit as absolutely true, according to their force and effect, as stated; and supposing, that lie stated the facts not more nor less strongly than the truth, it is not to be presumed that lie was prejudiced by their admission.
2. The next ground of error is, that the prisoner was not furnished with a true copy of the special venire summoned to try
This objection comes within the rule laid down in McCarty v. The State, 26 Miss., 301. The mistake in the copy must have been through inadvertence, and one which might quite easily occur under the circumstances, without an improper design, and no injury is shown to the prisoner in consequence of it. In addition to this no objection was made to proceeding with the trial at the time, and it was too late to raise such an objection after the verdict.
3. The third and fourth grounds of the motion have been considered in the case of Gaston E. Browning, and held to be insufficient.
5. The fifth objection is founded on the admission of the declarations of Gaston E. Browning, made after the death of Neal, to which the prisoner objected on the trial. The only declarations of this character, which appear to have been objected to, are those mentioned by the witness Pool, and are in substance, that on Tuesday morning, after Neal’s death, Gaston came to the witness’s house, and told him, his father, the prisoner, had sent him to get witness to take his ferry-boat down the river, and help them to look for the body of Neal. This was objected to, but the testimony was admitted, and we do not consider it error under the circumstances. The declarations objected to, were clearly immaterial, because it was not denied, that the prisoner was searching in the river for Neal’s body, which he insisted was there by drowning. And when the witness went to where the prisoner was, ho found him searching for the body, in accordance with the message he had sent to the witness. If, therefore, these declarations of Gaston were material, the circumstances tended strongly to show, that they were made by the authority of the prisoner, and should be taken against him. But, they are immaterial, and are mentioned by the witness as the commencement of his knowledge of the transaction, it being impossible that the fact stated could have any effect upon the case.
The next objection to the verdict is, that it is contrary to the
The principal facts of the case appear to be briefly as follows :
The deceased was the overseer on a plantation in Sunflower county, lying about seven or eight miles from the prisoner’s residence in the same county, which is near the Yazoo river. On Sunday, the 23d of July, 1354, the deceased left the place where he resided, declaring his intention to go by the prisoner’s house to Mr. Pool’s, who lived on the opposite side of the river, and to return either that evening or on the next morning. He left on horseback, clad in ordinary summer clothes, taking his blanket coat, on which he rode, and a rifle gun, which was very long, and which he said he took to get it cut off. He left between twelve and two o’clock, in the daytime, and it is not shown, that he was seen afterwards alive. He was temperate at the time, and did not appear to be laboring under any mental affliction. He did not return as he promised. On Monday afternoon, his horse was found in the possession of Gaston, who said he had found him in the woods near the prisoner’s house. A negro was sent on Tuesday, from the plantation, where the deceased had resided, and, in passing by Browning’s, told him that Neal had not returned home. The prisoner said that he had drowned himself, and summoned persons to search the river for the body. He said he knew that he had drowned himself, because he had said he would drown himself ; and his horse, saddle and bridle, had been found the preceding day in the woods back of his place. On Tuesday morning, the prisoner, with Gaston and one of the state’s witnesses, whom he had requested to go upon the search, went to search the river for the body. A skiff belonging to prisoner was found in the river on Monday morning, loose, and the prisoner said he supposed Neal had drowned himself there. They searched that place, but did not find the body, and went below to a place called Shell Bluff, where he requested one of the witnesses to station a negro to watch for the body,
The prisoner insisted that the inquest should be held by eleven men, taking the physician for the twelfth, urging, as a
The body, when examined, was found to have twine strings tied around the wrists and around the ankles outside of the clothes, and under the clothes were two wide towel bandages, tied and buttoned around the body. There were found three or four bruises on the occipital part of the head, which must have been made by a round or blunt instrument, as the skin was not broken, though the blood was coagulated; but they were not sufficient» to produce death. There were also bruises on the breast and on the calves of the legs. The physician who examined the body at the first inquest, states that the neck was luxated, and that that was the cause of the death. Another physician, who examined it on the second inquest, is of the same opinion ; while a third physician, who was present at the latter inquest (it was conceded by the admission of the facts stated in the prisoner’s affidavit), would prove that, owing to the inarti-ficial manner in which the examination of the body had been made by the physician, it was extremely doubtful whether the dislocation of the neck was not produced by the persons who made the first examination. One of the jurors of the first inquest states, that whilst the jury were examining the body, he turned the head around without moving the body, and remarked that the neck was broken. Prisoner was standing near, and witness looked at him as he made the remark, and the prisoner turned pale and leaned over the bank of the river.
During the inquest, the prisoner seemed to be aware that he was suspected; and when the last juror arrived, which was not until late on Thursday night, he proposed again that the inquest should proceed, for the reason previously stated by him; but the others objected, and it was not held until daylight. In the meantime, he told this juror that he supposed the deceased was murdered by negroes.
After suspicion had arisen against the prisoner, search was made about his premises, and a rope was found in a house in h'is yard with appearances of blood upon it, with a knot and noose, around which were hairs corresponding in color and appearance with the ⅜⅛ of deceased. Appearances of blood
The deceased is shown to have had a twenty-dollar gold piece and other money a few days before his death. When the prisoner took the pocket-book from the body, it had some money in it, and had an impression in it which looked like one made by a twenty dollar gold piece; but on producing the pocket-book at the trial and applying a twenty dollar gold piece to the place, it was found that the coin was a little too large for the impression, and a new silver half dollar was found a little too small to fit it.
It was in evidence that after the search of the prisoner’s house, he asked one of the witnesses if they had discovered anything about the premises; to which it was replied, “Not much, and yet it might be a great deal.” He asked if the children and negroes were searched, to which the witness said “No.” He asked if they found out anything from Ed (his negro) about a twenty-dollar gold piece. Witness said they had not. He then said Ed had found on Monday morning a twenty-dollar gold piece in the ferry flat, and brought it to him, and he gave it to his wife, and told her to put it away until the excitement was over, and if any one called for it he could then get it.
It was in evidence that one of the witnesses, who was at the prisoner’s house shortly after Neal’s death, had occasion to go up-stairs, and that he saw a gun, which, from the partial view he got of it, corresponded with the description of Neal’s gun, which he had With him when he left his place of abode. The testimony is somewhat conflicting as to the description of the gun as given by the witness corresponding with that of Neal. But it is in evidence that the prisoner’s son, who was with the witness when he saw the gun, stepped forward quickly and took the gun, which was leaning against a bed up-stairs, and put it away, expressing anger and surprise that the gun was there. The witness afterwards went back, but did not find the gun where the prisoner’s son had put it, or anywhere else. The prisoner’s son proves that the gun alluded to was his father’s,
In connection with the statements of prisoner in relation to Neal having drowned himself, he also said that Neal had told him that he intended to leave Mrs. Browning about $300, and the balance to the prisoner, after paying his debts, but that he told Neal that he did not want his property, and that he had better leave it to a public school. It was proved that Neal was intimate with the prisoner, and had great confidence in him; that he had been laboring under partial mental derangement from the use of ardent spirits in the winter of 1854, but had recovered, and was in his right mind in the summer, and was temperate in his habits. McNeill, his employer, states that he was not deranged, but had lost his wonted energy, and seemed to be suspicions of every one who came to his plantation. This witness states that he was at the prisoner’s bouse on Thursday before the death, and prisoner asked him how Neal was getting along, and he replied not very well, and that if he did not get along better, he would discharge him. Prisoner said he did not think he could get employment in the neighborhood, and spoke of his son Gaston indirectly, as he thought, as an overseer. He also- mentioned Neal’s will; and witness understood him to say that Neal had made a will giving Mrs. Browning $300 and the balance of his property to him after paying his debts. And it appears, by other testimony, that, after the inquest, he objected to other persons going to McNeill’s, on the ground that he was afraid the negroes might be frightened and run off. It also appears that Gaston went to McNeill’s place on Tuesday evening, and said that he had come to take charge of McNeill’s business; that Neal was drowned.
Several of the witnesses for the* prosecution state that they saw no blood on the skiff. A witness for the prisoner proves that he crossed the river between eleven and twelve o’clock on Sunday night, and that the prisoner was then at home. He crossed the ferry in the ferry-boat. When he crossed the previous afternoon, about three o’clock, the skiff was at. the ferry;
The prisoner’s son testified that the prisoner was at home all day Sunday; that Gaston got home shortly after dinner; that they ate supper about dark, and prisoner went to bed soon thereafter, and Gaston and witness soon after their father; that Neal did not come there that day or that night, so far as he knew. Testimony was offered for the purpose of discrediting this witness. Another son of the prisoner also stated that Neal was not at the prisoner’s house on Sunday or Sunday night. Testimony is also adduced to discredit this witness. This witness and another account for the blood on the skiff by stating that it was caused by cutting a hook out of a turtle’s mouth in the skiff.
Several witnesses testified to the good character of the prisoner before this charge was made against him.
These being the material facts which appear to have any important bearing on the case, it is insisted, in behalf of the plaintiff in error, that they are not sufficient to support the verdict in either of two points of view: 1st, That they are insufficient to show, with necessary legal certainty, that Neal came to his death by the violence of another, and that he was not drowned by his own act; 2d, That they are not sufficient to warrant the conclusion that the prisoner participated in the murder.
Before proceeding to consider these points, it is proper to recur to the rules of law by which the _sufficiency of the evidence is to be tested. The evidence in the cause was entirely circumstantial, and the rule in such cases is thus stated in Cicely v. The State, 13 S. & M., 211: “ That the legal test of the sufficiency of evidence to authorize a conviction is its sufficiency to satisfy the understanding and conscience of the jury; that a juror ought not to convict unless the evidence excludes from his mind all reasonable doubt of the guilt of the accused.” And in the case of McCann v. The State, ib. 490, the following rule is laid down, cited, as the one just quoted was from Starkie, as the only one which can be regarded as of practical application:
What circumstances will amount to proof can never be matter of general definition; the legal test is the sufficiency of the
Applying these rules to the verdict and the evidence with respect to the first point, we cannot say that the verdict was unwarranted by the evidence.
There is scarcely a circumstance shown in the case that renders the hypothesis that the deceased drowned himself at all probable. The only fact tending to establish such a result is his declaration made during the previous winter, and whilst he was laboring under partial derangement of mind, that he intended to drown himself. And the testimony tended to show that he had recovered from that attack, and had been temperate, and was sane on the day of his death, and had evinced nothing of mental derangement for a considerable length of time. The presumption of law is, that he was sane, and there is nothing to destroy that presumption as applicable to his condition when last seen.
It is not contended that there is any evidence that he was drowned by others, nor is it insisted upon, with any confidence, that the evidence shows that he committed suicide otherwise than by drowning.
The circumstances against the hypothesis that he drowned himself, and in favor of that, that he came to his death by violence inflicted by others, are clear and strong. The bruises on the occipital part of the head, which could not have been inflicted by himself; the bruises on his breast and calves of his legs; the luxation of the neck, which was discovered by one
Against these circumstances, the only evidence that has any force is the affidavit of the prisoner, stating what he could prove by Dr. Richards; which was admitted as evidence by the state. Giving to that testimony all its force as absolutely true, it would only show that it was, in his opinion, extremely doubtful whether the dislocation of the neck was not produced by the inartificial manner in which the examination at the first inquest was made. Two other physicians, one who made the first examination, and another who attended at the second inquest when Dr. Richards was present, are of opinion that the luxation of the neck was caused by hanging, and state satisfactory reasons for their opinion. And one of the jurors remarked about the dislocation of the neck, whilst the jury were examining the body. From these and all other circumstances above referred to, we think that the jury were well warranted in coming to the conclusion, that the neck was broken, and that the death was produced in that manner.
But if it were conceded with reference to the point under
Let us next consider the circumstances in evidence, tending to show that the prisoner was implicated in the crime.
1. The evidence presented to the jury a motive to commit the act, which it was their province to graduate. That was, the expectation of succeeding to Neal’s property, and the hope of securing the place filled by him on McNeill’s plantation for his son Gaston. The testimony of McNeill shows, that these things were upon his mind but a few days before Neal’s death.
2. The prisoner was the first to declare and insist that Neal had drowned himself, and to make the search for the body. His conduct about the search and inquest was deeply suspicious; his positiveness that Neal was drowned, his alacrity in searching the river for the body' without a particular inquiry at Neal’s residence about him; his having a negro placed below on the river to watch for it; he going above; his arrival at the place where the negro was watching immediately before the body came floating down; his positiveness that the body was Neal’s, when it was at too great a distance to be identified, and nearly under the water, lying on the belly, with a blanket coat on, in the month of July; his persisting in cutting the ropes around the body, against the remonstrances of the others present, which might very rationally have proceeded from the motive of cutting the sack of bricks tied to the body, and bricks, that may have been tied to the wrists, ankles and neck of the body, by the strings there found, as a means of preventing detection; his anxiety to bury the body speedily and without inquest; and his further insisting on an inquest without a full jury; and at night; his paleness and alarm, when it was mentioned, in making the inquest, that Neal’s neck was broken; his declaration to Bums (after being apprehensive that Neal was believed to have been murdered, and that he was suspected), that Neal had been murdered by negroes ; his declarations to Fields, before he left Shell Bluff on Tuesday morning, and to Petty after he had returned
3. The rope was found on the prisoner’s premises, in an outhouse close by his dwelling-house, having on it the appearance of blood, and hairs corresponding in color and appearance with Neal's, also a noose and knot at one end, where the hairs were found.
4. The skiff was at the ferry landing of prisoner on Sunday afternoon, about three o’clock, but was not there, when the witness Metz recrossed, about eleven or twelve o’clock that night. It was found next morning down the river, and appeared to have been washed out. Several of the witnesses saw marks of blood upon it, which had been rubbed or attempted to be washed out.
5. It appears that Neal’s gun was never found; and there was evidence tending to show, that it was seen by one of the witnesses in an upper room of the prisoner’s house. On the contrary, the prisoner’s son proved, that the gün seen by the witness was of quite a different description from that of deceased, and
In the most of the above particulars, the evidence was without material conflict as it is stated; but, upon some of them, there was testimony in behalf of the prisoner, either tending to contradict or to explain that in behalf of the state. This was the case with regard to the identity of the gun and the impression in the pocket-book. The first point involved a question of credibility of the witnesses, and it was not material to give force to the prisoner’s declarations about the gold piece, that its impression should appear in the pocket - book, for the deceased might have had the coin in his pocket-book and without leaving any impression, or the impression made might have been diminished in size by the shrinking of the pocket-book, after it had been soaked for many hours in the water and then dried. But the force of the circumstances connected with this coin arises from the prisoner’s declaration about the excitement, made with reference to the coin, before any suspicion of Neal’s death had been excited.
These numerous facts and circumstances all indicate that the prisoner was implicated in the death of Neal. If the jury gave entire credence to the testimony of the witnesses, w'ho deposed to them, which was their especial privilege, it is impossible for the mind to come to the conclusion, that the verdict was without testimony to support it, or that it is clearly against the prepon derance of the evidence; and that is the question which we are called upon to decide. The evidence is sufficient to show a motive in the prisoner to commit the deed, a course of conduct inconsistent with his innocence in nearly all his actions after its discovery, with evidence of guilt traced to his premises; and, after the full and fair instructions given by the court in his behalf, we cannot say that the evidence was not sufficient to satisfy the understanding and conscience of the jury, to the exclusion of every reasonable doubt. For the question with us is not, whether the verdict is clearly right, but is it manifestly wrong.
The testimony to support this objection is, first, that of Beall, one of the proprietors of the hotel, who states that the jurors always occupied the west end of the table, six on each side, with a place on each side to be occupied by an officer in charge of them or left vacant; that they were usually conducted to and from the table by two or three officers, who used unusual precautions to keep any one from having communication with or speaking to the jurors. Witness did not see the jury at any time in the dining-room, when there was not an officer sitting or standing by them. They could have heard the conversation of guests at the table. Witness and his servants waited on them at the table; witness did not speak to them, nor did the servants, to his knowledge; witness and the sheriff had both charged them not to do so; did not hear any one else speak of the case in their hearing; witness was the greater part of the time at a carving-table, in a part of the room remote from the jury. There was an officer always in the dining-room where the jury were. The case was never mentioned at the table in his hearing. There were about twenty witnesses in the case who took their meals at the sam.e table with the jury.
The sheriff testified that there were never less than two officers in charge of the jury in the dining-room of the hotel. He was with the jury at every meal except one, and there was no conversation with them in his hearing; that he was attentive in noticing the jury, and was generally with the juror next to the guests, though he sometimes went to the other end of the table where they were sitting, to wait on them. The witness and Beall and the servants waited on the jury. When he was at one end of the table, attending to the jury there, it is possible a word or two might have been uttered to those at the other end by the guests near them; and when he was at one end an officer was at the other. A servant might have said a word or handed
Johnson was a bailiff having the jury in charge, and was with them every meal except one, and usually stood or sat between them and the guests; heard no conversation about the case, and saw no communication between any one and the jury, directly or indirectly.
From this testimony it appears that the jury were all kept together, without any separation, and though they took their meals at a public table, at a hotel, where other guests were seated, they were always under the charge of a sworn officer, and generally, if not always, under strict vigilance. The case is, therefore, different from any one in which it has been held by this court, that the verdict was vitiated by improper conduct, as by persons being admitted to them in the absence of a sworn officer, or when one or more of the jurors separated from his associates, and was out of the sight or supervision of the officer. It is not to be presumed, that when the jury were always kept together, and under the direct supervision of a sworn officer, that any undue influence was exercised upon them, because, considering the probability of detection, and the severe consequences to be visited upon them, it is not to be supposed that others would attempt or that the jurors would admit any improper influence to be addressed to them.
The present case, therefore, comes within that class of irregularities, which are contrary to the proper forms of proceeding, but not sufficient to vitiate the verdict. Hare v. The State, 4 How., 194.
It is much to be regretted that irregularities of this nature are of so frequent recurrence in the circuit courts, notwithstanding the rules, which have been repeatedly held by this court, and which, if followed and rigidly enforced against officers and jurors, by exemplary punishment, would prevent all such irregularities. And, it is much to be regretted, that the learned circuit judges appear to be so little disposed to prevent violations of such established and salutary forms as are necessary to the validity and purity of judicial proceedings, by the exercise of the ample powers with which they are clothed. This evil, which is so
Let the judgment be affirmed.
Smith, C. J., concurred in the opinion of Mh Justice Handy upon all the points discussed, except as to the sufficiency of the evidence to sustain the verdict. On this point the chief justice delivered an elaborate oral opinion, in which he reviewed all the evidence, and declared it to be bis conclusion, that the evidence was insufficient to sustain the verdict.
FisheR, J., also concurred in the opinion of Mr. Justice Handy, except as to the last point discussed. He was of opinion that it was error to permit the jury to take their meals at the hotel, under the circumstances stated in the record.
Hnder the foregoing opinions, a judgment of affirmance was entered in this court. Afterwards, the counsel for the prisoner entered a motion to correct the judgment, so as to reverse the judgment below, upon the ground that two of the judges were of opinion that there was error in the record, and that a new trial should be granted.
This motion was argued by
Thomas Botters and W. JB. Helm for the prisoner, and D. G. Glenn, for the state.
This is a motion to correct the judgment entered in this case, by changing the judgment of affirmance into a judgment of reversal, so as to make it consistent with what is alleged to be opinions of a majority of the court.
To understand correctly the point presented for consideration, it will be necessary to refer briefly to the respective opinions of each member of the court. The most important points involved in the case, arose in the court below, on the motion for a new
Second, That the jury, during the four days of the trial, took their meals at the public table in the town of Lexington, and were, without stating specially the grounds, exposed on such occasions to improper influences.
Upon the first point, two members of the court were of opinion that the testimony was sufficient to uphold the verdict. The chief justice dissented on this point. Upon the other point, the chief justice and Judge Handy were of opinion that there was nothing shown in the conduct of the jury, while at the hotel, to authorize the court in disturbing the verdict. This being the attitude of the court, a judgment of affirmance was entered, on the ground that the law presuming the judgment of the court below to be correct, it could only be reversed upon a majority of the court agreeing that there was error in the judgment, or proceedings connected therewith. The question, in every case decided in this court, is error or no error in the judgment of the court below. The party assigning error assumes the affirmative of the proposition; and hence, if a majority of the court do not agree as to such proposition, to wit: That there is.error; the judgment must be affirmed, for the reason, that the presumption in favor of its correctness has not been rebutted.
But it must, at the same time, be borne in mind, that when it is said that the majority of the court must agree upon error, it is not necessary that the majority should agree upon the same point, unless such point could of itself constitute a distinct assignment of error; for it is not every point that may be argued by counsel, or be considered by the court, that could be assigned as error here. Such points are considered, because they tend to support the assignment, supposing it to be formally made. The question, therefore, is whether the two points already noticed, to wit: the insufficiency of the evidence to sustain the verdict, and the alleged improper conduct of the jury, could each constitute a separate assignment of error in this court. If a verdict respond to the issue, whatever may be the want of evidence to sustain the jury in their finding, it must stand until set aside by the court, upon a motion for a new trial, or upon some other
In coming to this conclusion, that I may not be misunderstood, I again repeat that I hold that a majority of the court must, in every case brought into this court, agree upon error, before reversing the judgment of the court below. But when I make this declaration, I, at the same time say, that the error must be something which could, under proper rules of practice, be assigned as error.
The want of evidence to sustain a verdict, or improper conduct in the jury finding it, can neither be assigned as error in this court. They both, or either, may prove that the court below, whose duty it was to set the verdict aside, erred in refusing to do so. We only know the error in the verdict through the action of the court in sustaining it. We do not say in such case that the verdict is reversed, but that the judgment upholding the verdict is reversed, and a new trial shall be granted.
Supra, p. 860.
Dissenting Opinion
dissenting:
This case is now presented again, upon the motion of the plaintiff in error, to correct the judgment entered here, and to have a judgment of reversal entered.
The ground of this motion is, that in the opinions expressed in the decision of the case, a majority of the court considered that there was error in the record, one member of the court, (Judge Smith,) thinking that the evidence was not sufficient to sustain the verdict, and in which opinion he dissented from Judge Fisher and myself, and Judge Fisher being of opinion that the verdict should have been set aside and a new trial granted, by reason of the jury being permitted to take their meals with the guests at the public table of a hotel, and in which opinion he dissented from the two other members of the court.
It thus appears, that although two of the members of the court
It appears to me, therefore, clear, that the decision must be, that there is no error in the record for which the judgment should be reversed.
When a judgment is reversed in this court, it is the duty of the court to state in writing the reasons for the decision, in order that they may be a guide to the inferior court, to prevent the recurrence of the errors found to exist in the subsequent trial of the case, and in order to settle the rule of law involved in the case, for the benefit of all the citizens of the state, and in all similar cases in which it may arise, for the action of the citizen, or for the government of the courts. It requires a majority of the court to agree upon some specific rule or point of law which has been erroneously decided in the inferior court; and, although a majority of the court may not agree in the reasons which led each of their minds to the conclusion that any specific rule or point of law has been erroneously decided, yet it is necessary that a majority should concur in the opinion that there is error in one and the same rule or point of law, as held by the court below. Otherwise, if the case goes back for a new trial, and the same point arises, the decision of the court below would necessarily be the same as was previously made, because the judge would be bound to know that this court had held that there was no error in that particular decision; and the same rule of action would be observed by all other courts in the state whenever the same question might arise.
Otherwise, if upon a new trial of this case in the court below, the prisoner should be convicted upon the same evidence which appears in this record, and a motion for a new trial should be made upon the ground that the testimony was not sufficient to warrant the verdict, the court below would be bound to overrule it, because this court, which has the power to declare the law of the case, has, by a majority, decided that the verdict should not
But it is said that the motion for a new trial, on account of the insufficiency of the evidence to support the verdict, and on account of the misconduct of the jury, presented but a single proposition which could be assigned for error here; that the error assigned was, that the court overruled the motion for a new trial; and, although the members of this court may differ as to the reasons why they think that the motion was erroneously overruled, yet if a majority think that it should have been sustained, one member upon one of the grounds stated in the motion, and the other upon the other ground, that the judgment must be reversed.
The error of this reasoning, I think, consists in this: the grounds upon which the motion for a new trial in the court below was made, are specified in the record. Each ground is separate and distinct from the others, involving points of law, and either of them, if decided in favor of the prisoner, would have entitled him to a new trial. Although the assignment of errors be general, that the court erred in overruling the motion for a new trial, yet when the case comes to be considered by this
Tinder our present practice, no assignment of errors is made here in legal form; but they are assigned in argument as they appear upon the record. It is, however, said that the question under consideration must be treated as if there had been a general assignment of error, that the error overruled the motion for a new trial. We are referred to the record to see what that motion is, and find it based on sundry grounds, any one of which, if sustained, would carry the motion. The generality of the assignment does not amalgamate points and questions of law which are in their nature distinct, and which this court must pronounce upon as legal questions in deciding the case. Suppose, on the trial, the court below had granted these instructions
I consider this motion as settled by the rule held by this court in the case of Bell v. Morrison, 27 Miss., 68, where the court was divided in opinion upon two points in the case, but there not being a majority holding that upon either of the points there was error. The first impression of the court in that case was, that the judgment should be reversed, there being a majority of that opinion, as in this case; but upon motion and after argument, the decision was that the judgment should be affirmed, which was accordingly done, because there was not a majority of the court holding that there was error in any of the points decided by the court below. The same rule is held in Alabama, in Cook v. Drew, 3 Stew. & Porter, 392.
When, therefore, it is the duty of the court to determine whether there is error in the points of law held by the court below, and this court is of opinion that there is no error in such
I am, therefore, of opinion, that the judgment be entered, as in law I consider it to be, affirmed.
Note.—This case was decided at the April term, a. d. 1856.
This case and that of Gaston Browning had acquired so much notoriety in the county of Holmes, to which the venue had been changed in the first instance, that it was deemed advisable, both by the counsel for the prosecution and for the defense, to petition the legislature for an act changing the venue to Carroll county. This was accordingly done, and the case of John D. Browning was tried at November term, 1857, of the circuit court of Carroll county, when there was a mistrial. At the April term, a. d. 1858, he was again tried and acquitted. He was defended by W. Cothran, W. B. Helm, J. K. Clinton and J. Z. George, and prosecuted by E. C. Walthall, district attorney, and W. Brooke and Richard Nelson.
At the July special term, A. d. 1858, of the said court, Gastou E. Browning was tried and acquitted. He was defended by Messrs. Cothran, Helm and George, and prosecuted by E. C. Walthall and R. Nelson.