Ned v. State

| Miss. | Oct 15, 1857

Smith, C. J.,

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Circuit Court of Yazoo county, in which the plaintiffs in error were convicted and sentenced for the murder of Ely, a slave. A motion was made for a new trial on the following grounds, to wit: 1. Because the verdict was contrary to law and evidence. 2. Because •witnesses who should have been excluded were allowed to testify at the trial. 3. Because the court erred in charging the jury. And, 4. On the ground of improper conduct of one of the jurors.

The second and third grounds assigned in support of the motion seem to have been abandoned, as they have not been pressed upon our attention in the argument of the counsel for the prisoners. We have however examined them; and pass them with the single observation, that in our opinion they are clearly untenable.

The prisoners were slaves, the property of William M. Pickett; and Sam, another slave of the same master, was the principal witness examined for the prosecution. In fact, he was the only witness who was present at the commission of the alleged homicide. He was examined without objection; and, if credible, there is not the slightest pretence for saying, that the finding of the jury was against the preponderance of the evidence. The effort is to discredit him; and it is conceded, that excluding his testimony, the verdict was unwarranted.

This witness (Sam), after having given a very clear and minute account of the killing, testified, that the “ accused threatened him that, if he ever looked as if he knew anything about the matter, they would kill him ; that he did not inform on the accused until the following Tuesday. His master told him he knew about the matter, and had struck him one lick to compel him to divulge it; but he denied all knowledge. But afterwards his master tied him, and he confessed all.” William M. Pickett, the master, in his testimonj, gave, substantially, the same version of this part of the transaction. He stated that “ he had never whipped Sam that he remembered; may have struck him with a whip, one lick; but that he had told the negroes that some of them had killed Ely, and that he would find out who did it; and that whoever did it should be hung. Having heard that Sam (the witness) was last seen with Ely, he took him up, and told him he knew who killed Ely. ■ Sam, at first, denied it; but he afterwards tied him, and told him to say who killed Ely. Sam never varied materially in the statements which he made in reference to the murder. They were the same as related from the witness-stand.” The statements of the witness, on this occasion, were made in July, and the trial was had in the November following. And it does not appear that any menace or other means was subsequently used to induce the witness to persevere in his account of the transaction. From aught that appears from the record, his testimony at the trial, was fairly given, and without the slightest appearance of constraint arising from any cause whatever. This conclusion is unavoidable; for otherwise the prisoner’s counsel would, doubtless, have objected to the examination of the witness, or have moved to rule out his testimony, upon the ground of incompetency, or the court, at their instance, would have given to the jury proper instructions on the subject.

In the state of the case presented by the record, the exception applies exclusively to the credibility of the witness. His competency was conceded by the prisoners’ omission to object to the introduction of his testimony. And whether the witness was credible or not, was a question which lay within the peculiar province of the >7-

The testimony of this witness bears upon its face very strong evidence of its truthfulness. It vindicates itself; and leaves no ground to doubt that he was an eye-witness of the transaction which he described. There is, however, a conflict between Sam and some of the other witnesses, arising from his statement of the time of day, when he and the deceased left the plantation on their way to the lake, and their statements as to the time when the .accused were seen at the quarter. But these were facts in regard to which the witnesses might have been most easily mistaken, and hence the greater probability that their statements would not agree. But Sam’s testimony, in several important particulars, is corroborated by facts deposed to by other witnesses. Upon the whole, we cannot doubt that the jury were fully justified in giving full credit to his testimony.

The remaining ground, claimed as a cause of reversal, refers to the conduct of Holmes, one of the jury who returned the verdict.

The facts relied on, as demonstrating the illegal conduct of Holmes, while acting as a juror in the case, are stated in the testimony of the witnesses, who were examined on the trial of the motion.

The testimony of these witnesses is substantially as follows, to wit:

F. W. Battaile testified, that he was walking on the pavement, and opposite the court-room, about the time the cause was on trial; said Holmes, one of the jury, put his head out of the window, called to him, and asked witness to tell his (Holmes’s) wife to send him his supper. To which he replied, “Well,” and afterwards delivered the message to Mrs. Holmes. The jury-room, where Holmes was, might have been sixty feet from the pavement, where witness was when called to by Holmes, and twenty feet from the ground.

Dr. Wilson testified to the same in substance, and, in addition, stated that Holmes’s request and Battaile’s reply was all that passed between them.

W. H. Mangum, an officer in attendance upon the jury, stated that, to his knowledge, the jurors conversed with no one. That Holmes’s son brought a note to Holmes, which the witness would not allow to be delivered, but took it from the bearer, and told Holmes that he could receive no messages from his wife.

And George W. Jones, special bailiff in charge of the jury, testified, in addition to facts sworn to by the other witnesses, that the little son of Holmes, and a little negro boy, brought up Holmes’s supper; they both came into the room where the jury were, with the supper; but witness received the supper from their hands, and sent them to the opposite side of the room from the jury, at a distance of about sixty feet.

The general rule recognized by this court, and applied to questions. similar to that which is before us, is, that if the verdict was rendered under circumstances in which its purity might have been affected, it must be set aside; if it could not have been affected, it will be sustained. Hall v. The State, 4 How. Miss. Rep. 194.

Applying this rule to the case under examination, it is very clear that the evidence shows that there was no improper tampering with, or sinister influence brought to bear, upon the jury. It goes further, and renders it certain that there could have been none.

The judgment will therefore be affirmed.