| Miss. | Jul 1, 1872
The plaintiff in error and Josephine, who are slaves, were jointly indicted in the circuit court of Bolivar county for the murder, by the administration of poison, of Lelia Virginia Jones. The indictment contained two counts. In the first, the parties were charged jointly as principals; and in the second, Josephine was charged as principal, and the plaintiff in error as accessory before the fact. Upon the application of the district attorney, and with the consent of the counsel, the plaintiff in error was tried separately, and convicted of the murder.
Before proceeding to trial, the plaintiff in error moved to quash the indictment upon the ground that there was an improper joinder of counts; which motion being overruled, he moved the court to compel the district attorney to elect as to which of the counts in the indictment the prisoner should be tried on. This motion was also overruled, and this action of the court is made the first ground of exception to the judgment.
The rule on this subject is well settled in this court. It is held that, in point of law, there is no objection to the insertion
The court, therefore, committed no error in refusing to quash the indictment for the alleged reason, or in refusing to compel the district attorney to elect as to which of the counts in the indictment the prisoner should be tried on. Moreover, the court had no discretion, in the ease. The motion for either purpose was made too late. The prisoner had been arraigned, and had pleaded to the indictment, before either the- motion to quash the indictment, or to compel the district attorney to elect, was interposed.
During the progress of the trial, Josephine, the party jointly indicted with the plaintiff in error, was tendered as a witness in behalf of the prosecution, and was objected to upon the ground of incompetence. The objection was overruled, and the defendant took his exception.
This ruling of the court is assigned for error; hut as tbe point has not been pressed in the argument of counsel, it is sufficient to remark that in this respect no error was committed. :
"Without noticing these exceptions in detail, we deem it sufficient to say that, after a careful and critical examination of the charges given for the state, and of the instructions as modified and given for the defendant, that in no single instance has an error been committed of which the plaintiff in error has a right to complain.
The remaining exception refers to the judgment of the court on the motion for a new trial.
First, it is insisted that a new trial should have been awarded for the reason that one of the jurors who returned the verdict was an alien, and hence not a qualified juror, according to the law of this state; and, secondly, because the evidence was not sufficient to authorize a conviction.
1. It appears, from the evidence in this case, that one O. A, Walker, who was summoned as a juror in this case, after examination by the state, was tendered to, and excepted by, the prisoner as a juror. It also appears, from affidavits filed in support of the motion for a new trial, that said Walker was at the time an unnaturalized foreigner, and that this fact was unknown to the prisoner or to his counsel until after the rendition of the verdict.
By the express terms of the statute, Code, 497, art. 126, the said Walker was disqualified to act as a juror in the case, and would, hence, have been set aside, if his want of qualification had been made known to the court, unless the objection had been waived by the defendant. The question, then, here to be considered, is, whether the plaintiff in error, who had it completely in his power to ascertain whether the juror tendered to him was not disqualified, must not be held to have waived the objection.
The statute is careful of the rights of parties capitally charged. It has provided efficient means to secure to them a fair trial by an impartial juiy of their country. To this end a special venire is awarded, to be drawn from a list of the names of the qualified jurors of the county; and the party to be tried
This precise question has never been determined by this court, but the principle laid down, and the reasons assigned for it, in Williams v. The State, 37 Miss., 407" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/williams-v-state-7998447?utm_source=webapp" opinion_id="7998447">37 Miss. R., 407, fully cover the question under consideration. The fact that the accused in this case was a slave, and not a free white person, constitutes no sufficient reason for departing from a rule founded in good sense and manifest policy. ■ *
2. Excluding the testimony of the witness Josephine, it is very certain that the facts proved by all the other witnesses do not, beyond a reasonable doubt, establish the guilt of the plaintiff in error; but it is equally certain that, giving full credit to her testimony, the proofs were altogether sufficient to warrant the verdict of the jury. There was a conflict between the testimony of the witness Eliza, a witness examined for the defense, and that of Josephine; and it is manifest that if the jury had given full credit to the former, the result of their deliberations might have been very different. But in such a case, that is, where there is a conflict in the evidence, it is the peculiar province of the jury to decide upon the credibility of the respective witnesses, and to believe the statements of those whom they judge entitled to credit. We are not prepared to say, under all of the circumstances proved by the testimony, that, according to the rules of law, the jury were not authorized to disbelieve the
There is also a direct conflict in the testimony .of the negro girl Maria, who. was examined for the defense, and that of this witness. Maria was the daughter of the wife of the accused, and was, when, examined, but eleven years old. Her testimony tends strongly to show that Josephine was the sole agent in the. perpetration of the murder. But her testimony is indirectly impeached by that of Professor -Moore, who .proved that, although there was arsenic in the tea, there was no evidence of the presence of that poison about the handkerchief through which the witness said Josephine had strained something into the teapot. Upon a survey of all .the circumstances proved at the trial, we think the jury were fully justified in disbelieving the testimony of the witness Maria.
It is possible that the witness Josephine, in delivering her testimony, may have been influenced by the hope or .expectation that, by procuring the conviction of the plaintiff, in error, she might escape the consequences of her own crime. ■ But of this fact, as well as of all the circumstances in proof before them, the jury enjoyed a much better opportunity of forming a correct judgment than we possess, who can only look at the transaction through the medium of a record. They were clearly and fully instructed as to, the law and their duties in reference to the testimony of the witness Josephine; and having, after a careful and dispassionaté examination of the whole evidence,, as we must suppose, given credit to her testimony, and rendered-, their verdict accordingly, we are not authorized to set it aside.
• Judgment affirmed.
State v. Crank, 2 Bailey, 66, 1 Chitty Cr. Law, 252, 253; Kane v. People, 8 Wend., 203" court="None" date_filed="1831-12-15" href="https://app.midpage.ai/document/kane-v-people-6119000?utm_source=webapp" opinion_id="6119000">8 Wend., 203; 12 ib., 455; Wharton’s Am. Cr. Law, 414, 415; Carlton v. Commonwealth, 5 Metc., 532; Moody v. State, 1 W. Va., 337" court="W. Va." date_filed="1866-01-15" href="https://app.midpage.ai/document/moody-v-state-6590708?utm_source=webapp" opinion_id="6590708">1 W. Va., 337; State v. Hood, 51 Me., 363 ; Cory v. State, 3 Port., 186; Stone v. State, 1 Spencer, 404; Rex v. Ferguson, 29 Eng. C. L. R., 536; Baker v. State, 4 Pike (Ark.), 56; People v. Rynders, 12 Wend., 425" court="N.Y. Sup. Ct." date_filed="1834-10-15" href="https://app.midpage.ai/document/people-v-rynders-5514359?utm_source=webapp" opinion_id="5514359">12 Wend., 425; Edge v. Com., 1 Barr, 275; Coulter v. Com., 5 Metc., 532; State v. Kirvy, Miss., 317; Mills v. Com., 1 Harris, 631; Hoskins v. State, 11 Geo., 92; Engleman v. State, 2 Carter (Ind.), 91; U. S. v. O’Callahan, 6 McLean’s C. C. R., 569; Johnson v. State, 29 Ala., 62" court="Ala." date_filed="1856-06-15" href="https://app.midpage.ai/document/johnson-v-state-6505804?utm_source=webapp" opinion_id="6505804">29 Ala., 62; Orr v. State, 18 Ark., 540; Com. v. Tuck, 20 Pick., 356; State v. Brady, 14 Vt., 353" court="Vt." date_filed="1842-03-15" href="https://app.midpage.ai/document/state-v-brady-6572617?utm_source=webapp" opinion_id="6572617">14 Vt., 353; State v. Crocker, 3 Harr. (Del.), 554; State v. Grisham, 1 Hayw., 12; Josslyn v. Com., 6 Metc., 236; State v. Flye, 26 Maine, 312; People v. Austin, 1 Parker’s Cr. R., 154; State v. Patterson, 1 W. & M., 305; Com. v. Manson, 2 Ashmead, 131; McGregg v. State, 4 Blackf., 101" court="Ind." date_filed="1835-12-01" href="https://app.midpage.ai/document/mgregg-v-state-7029941?utm_source=webapp" opinion_id="7029941">4 Blackf., 101; State v. Coleman, 5 Port., 32" court="Ala." date_filed="1837-01-15" href="https://app.midpage.ai/document/state-v-coleman-6529212?utm_source=webapp" opinion_id="6529212">5 Porter, 32; Wash v. State, 14 S. & M., 120; People v. Baker, 3 Hill, 159; State v. Hogan, Charlton, 474; Carlton v. Com., 5 Metc., 532; 1 Archbold’s Cr. Pr. and Pl., 95; Rex v. Jones, 2. Camp., 131; Rex v. Johnson, 3 M. & S., 539; Young v. Rex, 3 T. R., 98; Rex v. Towle, 2 Marsh, 466; Rex v. Galloway, R. & M. C. C. R., 234; 2 Leach C. C., 1105, n.