45 Miss. 114 | Miss. | 1871
At the October term, 1869, of the Coahoma county circuit court, the grand jury of that county presented an indictment against the plaintiff in error, charging him with the
The motion to set aside the verdict for a new trial was urged on the following grounds: -1st. The court erred in overruling objections to jurors because they were freedmen; 2d. The court erred in overruling objections to a juror who said he had formed an opinion, but that it would not require testimony to remove it; 3d. The court erred in overruling the motion to strike out the testimony relating to the confessions of the accused.
Not having been furnished with an assignment of errors, our examination of the record has been guided by the points made in his brief and argument by the counsel for plaintiff in error.
1. In regard to the objection that the indictment does not appear to have been filed, the record, page 1, recites, that “ on the 12th day of October, 1869, the grand jury of said county filed in said circuit court of said county aforesaid, an indictment in the words and figures following,” etc. Then follows a copy of the indictment upon, which the
2. The exception to the composition of the grand jury not only came too late but was not in the proper form. Doubtless, because of the frequent escapes from punishment of those charged with crime, and of exceptions (for the most part technical) to the grand jury, the legislature enacted that “no objection shall be raised by plea or otherwise to the grand jury, but the impaneling of the grand jury shall be conclusive evidence of its competency and qualifications.” Code, 499, art. 181. But parties interested “may challenge or except to the panel for fraud.” It is too late after indictment found to call in question its competency and qualifications by plea in abatement. Ib.
3. The third point of counsel is disposed of by the foregoing.
4. The exception to the juror, McCorby, on account of bias, is not well taken. Being examined on his voir dire, he said he ‘ ‘ had formed and expressed an opinion in the case from rumor, but that it would not require testimony to remove it.”
It is the right of the accused to be tried by a fair and impartial jury. One who has forejudged the case, in whose mind is an opinion, clearly defined, is unfit to sit on the trial. It is quite impossible to lay down a precise rule applicable to every case. The accused has, in all cases, the privilege of a jury of the country. His case may be so notorious that, perhaps, most persons qualified for the duty have heard of it, with more or less circumstantiality, and have upon their minds some impressions in regard to it. Such is the quality of the mind that every thing heard or said makes .at the time an impression. It may be tran
5. The confessions of the accused having been given in evidence without objection, counsel then moved to strike out so much of the testimony as relates to those confessions, but the motion was overruled, and this is now urged
Sallie Moreland testified that she “heard Stacy advise Lee to give himself up and confess, he (Stacy) would come down next day with his (Lee’s) witnesses and have him cleared. This was the day after Riley was killed.” And this is all the testimony with reference to the confession. Arising, as this point does, on a motion to strike out testimony given without objection, the presumption is very strongly in favor of the correctness of the action of the court, but, in this instance, no such presumption is necessary, for we do not think this is a case within the rule which excludes confessions. Mr. Stacy was not in authority over Mr. Lee, who was not a prisoner. The confession was evidently the result of a deliberation, in which- the accused was the equal of those with whom he. advised as to the best course for him to pursue. The confession followed, clearly, in accordance with the convictions of his own mind, as the wisest thing for him to do. Our deduction from the evidence is, that the confession was not extorted by threats or fear, nor yet by promises, but that it was the result of a consultation, and the calculation of chances.
This is not a confession after an arrest, extorted by the fear or anticipated favor of persons in authority over him,
6, 7. The sixth and seventh points urged by counsel question the regularity of the venire facias, claiming that the writ should have been quashed, and that the irregularity mentioned was cause for a new trial, which the court erred in refusing. We have compared the facts set forth in the record with the provisions of the Code, pp. 499, 500, arts. 135 to 139, both inclusive, and find they were strictly complied with, except that the annual jury list was deposited by the clerk in box 2 instead of box 1. There were no names in box 1, and the drawing was from box 2. In all other respects the proceedings conformed to the Code. No fraud is alleged, nor is there an intimation of unfairness in any respect. The jury list embraced all those in the county qualified for that duty. The names, written on slips of paper, were all deposited in one box, and that was the box marked No. 2. Neither fraud, partiality or unfairness is intimated, and we do not see how, by any possibility, drawing from any particular box, whatever its mark, could in the remotest degree contribute to the selection of any certain person or persons on the jury. For all the purposes of the law, box 2 became box 1 for that occasion. The jury must have been the same in either case. Our conclusion is, that we cannot for this cause disturb the verdict.
8. Counsel charges that the jury were subjected to improper influences. Upon this point the following testi
The clerk testified, that on coming to the court room, before court met, he found the jury there ; does not remember whether the bailiff was with the jury or not; thinks Mr. Asa Cobb and his son, witnesses for the state, were in the room, but was not certain; did not speak to the jury, and did not hear any one speak to them; was busy at work, with his back to the jury.
The bailiff testified, that he left the jury to go to the post-office for letters; was absent but a moment; there was no one in the room but the jury and clerk; the sheriff was at the door and staid there while I was gone ; the jury did not separate ; they were sitting around the stove ; returned to the court room ahead of Glen. Chalmers ; Mr. Cobb and his son were not in the room when he got there, but came in after he returned.
Jack Lawler testified, that Mr. Gllenn asked him to take care of his horse, and he said he would, and that was all that passed between them.
H. P. Reid, counsel for accused, testified, that when he came into the court room the white jurors were in the corner, and the colored by the stove; one William Hoskins was sitting near the negro portion, and Asa Cobb and his son were not far off; entered the room soon after Glen. Chalmers.
Glen. Chalmers, counsel for accused, testified, that he met the bailiff at the post-office, who said he came on business for the jury; went into the court room about the same
The district attorney testified, that he entered the court room before General Chalmers, and was engaged in reading when the jury passed in a body to their box, and does not think the jury separated.
A member of the jury testified, that for perhaps five minutes the white members of the jury were sitting in the corner, and the negroes by the stove ; does not know who was in the room; was not paying attention ; remembers to have seen General Chalmers and Mr. Reid come in ; thinks the white men where separated from the negroes when they came in. This was all the testimony on that point. We give it entire in order to present precisely the aspect of this allegation. It has not that importance with which counsel have sought to invest it. The jury went in advance of the opening of the court in the morning to their box in a body. Between the portion of the room where the jury were and the body of the room there was a railing. Within the bar were the clerk and the district attorney. Outside the bar were three persons ; the most perfect quiet prevailed. All were seated. A part of the jury were seated in the comer, in the jury box, and a part were seated at the stove. Under these circumstances the bailiff was absent for a moment; the sheriff standing at the door. It is consistent with all the testimony, that, during the absence of the bailiff, there were in the room only the clerk and district attorney within the bar, and the sheriff at the door, Mr. Cobb and his son, and Mr. Hoskins coming in and taking seats at the moment of the return of the bailiff. We fail to see in the facts detailed any thing of an unusual character. Like circumstances are probably seen on every trial at every court in the state. In this instance, the jury cannot be said to have separated. It is a misuse of the term. There was no noise, moving about or confusion, but, on the contrary, the utmost
We have carefully examined the record in this case, and the authorities referred to, besides others. A review of the adjudications is not required, there being no new principie involved. It is only necessary to remark that the facts presented to us do not bring any of .the points made by counsel within the rules of law applicable thereto, wherefore, the judgment is'affirmed, and the sentence pronounced will be enforced from the date fixed by the circuit court.