Horn was convicted of manslaughter in the killing of Mat Musgrove by acts amounting to culpable negligence (Section 2232, Miss. Cоde 1942) and sentenced to the state penitentiary for two years.
He says the testimony was not sufficient to sustain the verdict of the jury. Since the case is to be retried we deem it advisable not to set out the testimony nor comment uрon its weight and effect. It is sufficient to
He next urges a reversal and remand of the case because of a communicatiоn had between the bailiff in charge of the jury and the jury as now set' out. The bailiff heard a knock on the juryroom door. Hе opened it and one of the jurors, while the other jurors were in the same room, asked the bailiff, who was also thе deputy sheriff, what the penalty was for manslaughter. The bailiff, in his testimony, was not sure of the exact words used by him in his reply. At onе place he testified he said “I do not know unless it is from one to ten”. “I wouldn’t say whether I stated on the ten part whethеr it was years or whether I just said ‘one to ten’.” Again he testified, “I said ‘I don’t know, but the best of my remembrance it might be from one to ten’, and I don’t recall whether I put ‘years’ on the ten or not.” This transpired without the knowledge of the trial judge.
In about thirty minutеs the jury brought in the following verdict: “We, the Jury, find the defendant guilty as charged, and ask that he be given the mercy of the court. ’ ’
Whеn this verdict was read the judge asked the jurors what they meant by requesting the mercy of the court, and the spokesman fоr the jurors, in the presence of the others, said they intended that to mean one year in the penitentiary.
In Wilkerson v. State,
“We are of the opinion that the record sustains the presumption that the statement made to the jury by the bailiff may have had a decided effect upon the vеrdict. The jury had retired from the bar and had been in consideration of the case for an hour and a half, and upon receiving the statement of Bond they immediately made up their verdict. According to the statement of Bond as to what the law of the case was, the verdict rendered was for a misdemeanor, or was so intended, while the crimе proven, in any view of the evidence, was a felony. The statement of Bond was erroneous and untrue in law and in fаct, but the mischief is not the less on that account. If it could be known, which it is now impossible to know, that the verdict when rendered, if no such statement had been made, would have been just as the one rendered, that would not change the law of the case. The atmosphere of the case, if the figure be allowable, as shown by the record, disclоses a purpose to deal gently with the defendant, a young man thought to have been led astray by others. For the breaking into the dwelling house of a neighbor while the family was absent, by bursting open the outer rear door with an ax, and of stеaling thirty-odd dollars, clearly proven, the judgment recites that he was sentenced for ‘one full’ year to the pеnitentiary, whereas common justice and practice would have sent him up for several years. The hesitatiоn of the jury in convicting him promptly upon certain evidence of unmistakable guilt, fortified by his own testimony to facts which left no room for doubt of his guilt, raises, as we think, a reasonable suspicion that the verdict was the result of the statemеnt of Bond. By Section
In the сase at bar, it is clear to us, the jurors understood from the bailiff the punishment for manslaughter was from one to' ten years in the penitentiary. That was not correct. In case of punishment by being sent to the penitentiary the penalty is not less than two years nor more than twenty years. Section 2233, Miss. Code 1942. And it is equally clear, from the statement of the forеman of the jury to the trial judge, made in the presence of the jurors, the jurors expected, or, at least, hoрed the trial judge would impose a sentence of one year in the penitentiary, and they asked the mercy оf the court upon that belief or hope. Conceivably, had the jurors not thought defendant could be sent to the penitentiary for as short a period as one year, they would not have convicted him — at least, it is impossible to say they were not influenced in their action by the information they had received from the bailiff. The following cases hear, more or less, upon this question: Green v. State,
Reversed and remanded.