Johnson v. State, 23 So. 338

Johnson v. State

23 So. 338 | Miss. | 1913

Need, J.,

delivered the opinion of thé court.

Ada Johnson was convicted on a charge of murder and sentenced to the penitentiary for life. There is sufficient evidence to support the jury’s verdict.

Appellant contends that there were a number of errors committed during the hearing of her' case, but we do not find any reversible error in the proceedings. We will, however, notice several of the assignments presented by appellant and argued by her counsel in their brief.

It is claimed that the verdict of the jury is illegal. The verdict reads as follows: “We, the jury, find the defendant guilty as charged, and certify that we are unable to agree upon the punishment, and in which event the accused will be sentenced to the penitentiary for the remainder of her natural life, or.” It is urged that the verdict is incomplete. The words of the verdict are taken from the third instruction for the state, and are the same as those of the third paragraph of the instruction. The juror who wrote the verdict, in taking it from the instruction, did not stop with the quotation mark used to show the ending of the exact words of the verdict, but continued and wrote all of the words of the paragraph. The verdict, in effect, finds appellant guilty and states that the jurors are unable to agree upon punishment. In such event, it is the duty of the court to sentence appellant to the penitentiary for life. The words in the verdict, “and in which event the accused will be sentenced to the penitentiary, for the remainder of her natural life, or,” we deem surplusage only. They do not render the judgment illegal.

Appellant insists that the court erred in not instructing the jury on manslaughter. No such instruction was asked for by counsel for appellant upon the trial. Under the system of judicial procedure in Mississippi, it is not in the province of the judge to give instructions to the jury unless one of the parties request him to do so and present to him in writing the desired instruction. He is not per*102mitted to instruct the jury at Ms own instance. Having failed to present a written instruction on manslaughter to the judge, with the request that it be given, appellant cannot now be heard to complain that she has not received the benefit of such instruction.

It is claimed that there is error in the judgment imposing sentence, because it is recited therein that the appellant was sentenced to the state penitentiary for life, “for such her crime of manslaughter.” Appellant was indicted for murder, and tried for that offense, and the verdict of the jury convicted her of murder. The entire record shows a trial for murder only. It will be noted that appellant complains of the failure by the trial judge to give, upon his own motion, a manslaughter instruction. There is nothing in the record to show a trial and conviction on the charge of manslaughter. It is therefore apparent that the sentence imposed was upon a conviction of murder, and the statement of manslaughter in the judgment of the court was merely a clerical error on the part of the clerk in entering his minutes.

Appellant assigns as error the partial hearing of a motion for continuance in her absence. It appears from the statement by. one of appellant’s counsel that a motion for continuance was made on account of the illness of another of her counsel. The motion was presented before the impaneling'of the jury had been completed. No one noticed the absence of appellant. When the judge’s attention was called to the matter, he immediately ordered the motion stricken from the record; and, appellant then being in court, the motion was again presented, and passed on in her presence. We see no error in this. The trial of the case on its merits had not begun, and all thnt-was done while appellant was out of the presence of the court was stricken from the record, and was as if never done. In fact, the record contains no proceedings in the case had in the absence of appellant.

It is also contended that the jury was not properly guarded during its deliberations, because a bailiff in *103charge slept in the room with the jurors and conversed with them concerning matters not relating to the case. He did not talk with them while they were discussing the case, or while actually engaged in .their deliberations. There is no evidence to show any undue influence exercised by the bailiff. It was necessary for him to communicate with the jurors and associate with them, in order to serve them and supply their needs. We see nothing improper in the conduct of the bailiff, and nothing to east suspicion on the verdict.

Affirmed.