Lewis v. State

| Miss. | Mar 15, 1915

Cook, J.,

delivered the opinion of the court.

Appellant was convicted of murder and sentenced to life imprisonment in the penitentiary. In this appeal there are numerous assignments of error; but, inasmuch as the judgment of the trial court will be reversed and the cause remanded for a new trial, we do not deem it necessary to discuss more than two of the alleged errors.

It appears that the bailiff in charge of the trial jury, after the case had been submitted to the jury, and after the jury had considered the case for two days without being able to agree upon a verdict, delivered a message to the jury which he told the jury he was instructed by the judge to deliver. This came about in this way: After consulting for two days, the jury had not reached an agreement, whereupon the foreman of the jury asked the bailiff to go to court and ask him to discharge the jury, because he (the foreman) did not believe that the jury would ever agree upon a verdict. The bailiff went to the judge and delivered the foreman’s message, and afterwards told the jury, in substance, that the judge said that he could keep the jury for another week at less cost than he conld have another trial, and that he would keep the jury for another week if they did not come to a verdict. Three or fours days after the jury received this alleged message from the judge a verdict was returned. There is some little confusion in the record as to just what the bailiff said to the jury, but, as we read the record, the above is about the substance of what was communicated to the jury.

The bailiff is put in charge of the jury, to see that no outside influences are brought to bear upon them. The bailiff is an outsider so far as the deliberations of a trial jury are concerned, he has no right to say one word to the jury which would be calculated to influence the verdict. The judge should not send messages to a jury, and it is only fair to say that this record does not show that the judge sent the message complained of. This court, in May v. State, 98 Miss. 584, 54 So. 70, said:

“The jury, when it retires to consider its verdict, should be left absolutely free from any and all outside influence. When it retires, it is supposed to be alone and in seclusion, so to speak, there to consider the case submitted to them with perfect freedom.”

After the homicide was complete a witness made this statement, speaking to defendant: “You killed my poor father not for a thing in the world; he hadn’t done a thing.” This accusation was made just a few moments after the fatal shot was fired. When this was offered in evidence defendant objected, and his objection was overruled. It is contended that this statement, or accusation, was competent as a part of the res gestae, and that it was an accusation which defendant was called on to deny. In Mayes v. State, 64 Miss. 333, 1 So. 735, 60 Am. Rep. 58, we quote this definition of res gestaes,

“It is not enough that the statement will throw light upon the transaction under investigation, nor that it was made so soon after the occurrence as to exclude the presumption that it has been fabricated, nor that it was made under such circumstances as to compel the conviction of its truth; the true inquiry, according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history, or a part of a history, of a completed past affair. In the one case it is competent; in the other it is not.”

We think that this statement did not measure up to the definition, and that the objection should have been sustained. The defendant was not called on to deny the accusation.

We do not mean to say that this error alone would justify a reversal, but merely point it out that the court should avoid a similar mistake in a retrial of this case.

For the errors mentioned the cause is reversed and remanded.

Reversed and remanded.