Cartwright v. State

71 Miss. 82 | Miss. | 1893

Woods, J.,

delivered the opinion of the court.

The errors complained of in the first and second assignments, if errors they were, need not be considered. They proved harmless, for the action of the jury in acquitting one of the defendants, and in finding the other guilty of manslaughter, demonstrates that the homicide committed eighteen months before did not furnish, to the mind of the jury, the motive for the homicide charged in this prosecution. Evidently, the jury rejected the state’s theory that the killing was murder and that the motive for its commission was to prevent arrest for the prior offense in another state, and so the defendant is left without ground for complaint on this point.

The remarks of the prosecuting attorney were unwarranted and improper, we think, but no objection was interposed, nor any exception taken at the time. Only in the motion for a new trial is any mention to be found in the record of the supposed transgression of the counsel for the state. If counsel go beyond proper bounds in the heat of debate, opposing counsel should then interpose, and have an opportunity given for the correction of the wrong. If such error is suffered to pass unnoticed at the time, it must be a most extreme and intolerable abuse of the advocate’s privilege that will receive correction at our hands.

The law was fairly and fully given for the defendant, and we find no error in any action of the court upon the instructions.

The eighth assignment of error is well taken. Some members of the jury, during the progress of the trial, procured copies of a daily newspaper, containing the substance of the evidence of many of the witnesses who testified on the trial, as the same impressed itself upon the mind of the newspaper reporter. It filtered through the medium of a partisan of the state, and was his version of the evidence. This version, too, was accompanied by remarks of the reporter unfriendly to the accused, and well calculated to excite prejudice in the mind of a reader. The homicide was characterized as “ the unprovoked murder of two officers while in the discharge of official duty.” The defendants were declared to he the possessors “ of very unsavory and damaging antecedents.” This method of communicating to and impressing upon the jury, or any member of it, the opinions of others is open to the same condemnation which would be visited upon oral expressions of opinion touching a defendant, injected into the body of the jury by some designing intermeddler. We can see no difference, unless in degree. The widely-read and influential daily journal, speaking for as well as to the public, reflecting popular sentiment as well as making it, must be held to be much more powerful in influencing the average man than any expression of opinion by a single private individual. We know of no reported case in which an outside person has been shown to have talked with the jury, or a member of it, concerning the accused when on trial for a high crime, and especially to have talked unfavorably to and with the jury of the accused, in which the verdict has not been set aside. It seems to us impossible to distinguish between the mischief done by oral and written or printed communications. In every instance in which improper influences have been brought to bear upon the jury, there will ai’ise the fear that the accused has not had that fair and impartial trial to which he was entitled.

But, in addition to this most reprehensible conduct of the jurors in thus reading the newspaper reports of the evidence adduced,- colored necessarily by the feelings of the reporter, it is shown that there was an unwarranted and wholly unexplained separation of the jurors. On hearing evidence in support of the motion of the prisoner for a new trial, Mr. Eyrich testified that, on one occasion, during the progress of the trial, when the jury passed the door of his business-house, one of the. jurors came into his store alone, called for paper and pen, and wrote a note. IIow long this juror remained away from his fellows nowhere appears. 'To whom the note was written, or what were its contents, does not appear. ‘Whether the juror talked with persons in the store or elsewhere, when he set out to rejoin his fellow-jurors (for we must assume that he did somewhere at some time rejoin them, seeing we find a verdict subsequently rendered), is left to blind conjecture. The state made no effort to show any fact by any witness which would relieve the conduct of the culpable juror of that suspicion which naturally attaches to it; and this, at least, the state was bound to do before its verdict should have been permitted to stand. So long as jurors recklessly disregard the instructions of the trial court (for we unhesitatingly assume that the court did instruct the jury as to its duty to remain together and shun all communication from any source), just so long will this court, in seeing that every person accused of crime has a fair and impartial trial, feel bound to set aside verdicts thus obtained. In all the multiplied cases in our own reports, from Hare’s case, in 4 Howard, to Skates’ case, in 64 Miss., there is to be found universal and unmeasured condemnation of verdicts open to grave suspicion of unfairness.

We regret the necessity of reversing the judgment, but an imperative sense of duty demands it.

Reversed and remanded.