Mabry v. State

| Miss. | Oct 15, 1893

Campbell, C. J.,

delivered the opinion of the court.

The juror, Shoemaker, did not come up to the constitutional requirement. He was not a qualified juror, for he could not write and read any section of the constitution. He was a registered voter, it is true, but that does not satisfy the constitution, which declares that “ no person shall be a grand or petit juror unless a qualified elector, and able to read and write” (§ 264) ; and by § 244 it provides that every elector shall “be able to read any section of the constitution of this state,” thereby prescribing the standard of capacity to read, so that it is not left uncertain what is meant by “ able to read,” as, used in § 264. Section 2354, code 1892, in prescribingwho are competent jurors, makes a “ duly registered” voter the equivalent of a qualified elector, and is in this unconstitutional, as we have shown in several decisions during this term, since one may be duly registered, and not be a qualified elector.

It is unnecessary now to decide the effect of the offer of the district attorney to the counsel of the defendant to excuse Shoemaker after he had been seated in the jury box. If any doubt arose as to the competency of the juror, the court should have set him aside, as it had full power to do without error, at any time before evidence was submitted.

The juror, Hyman, who had heard parts of the former trials of the case,.and declared he had a “fixed and definite opinion,” and would not say positively that he could try the case as though he had no opinion, did not meet the requirement of an impartial juror. No doubt the judge found difficulty in securing jurors, in view of the habit of men to come near to perjury, and sometimes perhaps commit it, to escape the horrid service as jurors in capital cases, and concluded, as this man did not know whether he had conscientious scruples as to capital punishment or not, that his “ fixed and definite ” opinion did not stand in the way of his being impartial, but it is the safer course always to reject one who swears he has such an opinion.

The eighth instruction for the state is objectionable, as telling the jury that the reported evidence of the deceased witnesses was entitled to the same consideration as if they had testified before the jury.

The first thirty-two instructions asked by the accused were given, and the next seven were refused. "We draw the line far this side of thirty-two instructions on one side! Life is too short and time too precious to be expended in dealing with fifty-three instructions, or any such number iii one case, and, as all terrestrial things have limits, we have determined to announce that, where the court in any case has given the first six, eight, or ten instructions asked by a party, and refused any more, we will not consider errors assigned as to such refused instructions, unless it shall appear that the jury was not furnished a sufficient guide for their proper determination of the case. The courts have just as much right to-limit instructions to a proper number as they have to limit argument within proper bounds, and it should be done, with proper caution to avoid injustice, and they will be sustained in this course by this court by its refusal to consider errors predicated of the refusal of the trial courts to grant an unnecessary and unreasonable number of instructions, whereby jurors are confused often, and judges ehtrapped into error after being wearied with attention to the many instructions preceding, and much valuable time is wasted by counsel and judges in disposing of the case.

All the testimony of what Rials said and did as to selling or disposing of his gun was incompetent..

The testimony of the woman, Seitzler, about the night occurrence at White’s, ought not to have been admitted as evidence, but the 'record does not show any objection to it when offered and given, and it was too late to raise an objection by motion to exclude after having experimented with it in the-way shown.

The supposed infidelity of the wife of Rials, and his quarrels with her. and what he said to her or did to her in Arkansas or Mississippi had no proper place in the case. The accused was on trial for murder, and all the miserable “ stuff” about the wife, and her husband’s treatment of her, should have been excluded, as much of it was. The only error was in not excluding all of it. What Rials said to Mabry, and what they each said and did to each other, and any declarations evincive of the purpose of one towards the other, within the well-known legal rules, were admissible, but it was not proper to try Rials’ wife or Mabry for illicit intercourse, for that was not the issue joined.

Reversed, and remanded for a new trial.