59 Miss. 484 | Miss. | 1882
delivered the opinion of the court.
The fact that the circuit judge had given the juror Davis leave of absence to attend upon a dying brother was not a
As the presiding judge determined to respect the objection of the prisoner, because of the absence of the juror Davis, so far as to retrace his steps, and to obtain the attendance of Davis, he should have stopped at the point at which the objection was made on account of Davis, and, retaining in the panel those jurors who were called before the name of Davis was reached, should have proceeded ; but as the result was reached which this course would have insured, no error occurred to the prejudice of the prisoner, who after the return of Davis was presented with the same persons as jurors who were in the box when he raised his objection on account of his absence. The prisoner cannot be permitted to complain successfully of the action of the court in pausing and sending for the juror Davis, and commencing anew to make up a jury, as this course was, in the opinion of the circuit judge, made proper by the objection of the prisoner because of the absence of that juror by leave of the judge.
It was not error to exclude from the jury those who were unwilling to convict of murder, to be followed by death to the convict, upon circumstantial evidence. Jones v. State, 57 Miss. 684. That the case did not depend on circumstantial evidence made no difference. It would be unsafe to tolerate such a distinction. It cannot be known in advance in any case how far it may depend on circumstantial evidence. The competency of jurors is not determinable by the character of evidence expected to be introduced, but by the fitness or unfitness of the juror with respect to the standard erected by law for every character of case.
It is incredible that the use of the word “ affect ” instead of
The other instructions for the State are free from objection, except the third, and it apparently varies but little from the instruction on the same subject in Wesley v. State, 37 Miss. 327. A careful comparison shows a material difference between the two instructions. That in the case cited announced that “ no character, however good, is sufficient to authorize the jury to find the prisoner not guilty, if the proof is otherwise clear and satisfactory that the defendant is guilty as charged.” The instruction before us declares that evidence of good character “ is insufficient to raise a reasonable doubt when, excluding such evidence, the case is otherwise made out against the accused,” and is objectionable as being on the weight of certain evidence. We do not approve this view of the law with respect to evidence of the good character of the accused. “ A good name is rather to be chosen than great riches,” and in no other emergency of one’s life may it or should it prove to be such a tower of strength and such an effective shield as when he is charged with crime. Evidence of the good character of the accused should go to the jury as any other fact, and its influence in the determination of the case should be left to the jury without any intimation from the court of its value. The court should not tell the jury that satisfactory evidence of the good character of the accused is or is not sufficient to raise a reasonable doubt of his guilt. The jury is to have this evidence as an aid to estimate the other evidence, and by the light of the whole to reach a verdict. There may be many cases where proof of good character would turn the scales in favor of the accused, and the just value of such evidence should not be depreciated by an instruction limiting its efficiency in any case. This is the view which we understand to have been held in Wesley v. State, cited above. At all events it is our view, and must govern on this subject.
Although the third instruction for the State is not a proper one, it is not a sufficient cause for a reversal of the judgment.
Judgment affirmed.