21 Miss. 500 | Miss. | 1850
Lead Opinion
delivered the opinion of the court.
The prisoner was indicted and found guilty of the murder of Jesse Price. He brings up his case on eight bills of exceptions, seven of which were taken on points ruled during the progress of the trial, and the last to the decision of the court in overruling a motion for a new trial, in which the testimony is .set out, and seven reasons assigned in support of the motion.
The several points raised were thoroughly investigated by counsel, and the arguments on both sides were so lucid and forcible, that the labor of deciding is rendered comparatively light.
The first exception was taken to a refusal to sustain a challenge for cause to a juror. When called to answer questions, he stated that he had formed and expressed an opinion from what he heard one Mansfield say some of the witnesses had told him, though the juror had not heard any of the witnesses say any thing on the subject; that his opinions were not such as would influence his verdict, but he would be governed by the evidence.
This point is not, certainly, free from difficulty. The question is one of very frequent occurrence, and the decisions are numerous, though not entirely consistent. It is a question on which it seems difficult to lay down a definite and precise rule, which can be applied as a test in all cases. The great principle is, that every man who is accused, has a right to demand a trial by an impartial jury of his country; a jury whose minds are free from prejudice and from bias. Cases may arise in which it is next to impossible to procure a jury of this description, but even in such cases, the nearer we can approach to the
The second bill of exception raises this question: Was it competent to discredit a witness by introducing his statement made on the trial of a habeas corpus, as taken down by the vice-chancellor, before whom the trial was had? The statute does not make it the duty of the judge, on such a trial, to take down the evidence unless one of the parties desire it, and then he is only required to take down the material facts.. Hutch, Code, 1001. We do not think an examination taken down under this statute can be read for such a purpose, unless it be read over to, and signed or approved by, the witness. 1 Phil. 293.
The third bill of exceptions relates to the declarations of de- ? ceased, madein extremis. They were made under all due solemnity. The deceased declared that he knew he could live only a few hours at most, perhaps not more than an hour. The de
Evidence of this description is classed under the head of hearsay evidencé, though perhaps it stands somewhat on a different footing. The awful situation of the party in prospect of immediate dissolution, is supposed to be as powerful on the conscience as the obligation of an oath. Such evidence is only admissible under a rule of necessity, and constitutes the only case in which evidence is admissible against the accused, without an opportunity of cross-examination. The leading rules in regard to the admissibility of such evidence, are laid down in Note 453 to Phillips’ Evidence, and in 2 Starlde’s Evidence, 366, 367. It is said the court must try the competency of the deceased, and the jury his credibility. Various questions may arise after the court shall have admitted the evidence. The jury may question its credibility, and consider its effect. As it is given and received under peculiar circumstances, great caution is called for in the application and use of.such evidence. To this end, it is important that all attending circumstances should be well weighed by the jury. The degree of self-possession, of observation and recollection of the deceased, should be ascertained. The state of mind arising from a sense of his critical situation, added to his suffering condition, may produce indistinctness of memory, and all these may tend to shake the confidence of the jury. It is said by an eminent writer, cited 2 Starkie, 366, that “ sometimes the declaration is of a matter of judgment, of inference, and conclusion, which however sincere may be fatally erroneous. The
We shall touch but one other question. Several of the jurors were introduced to testify in support of the motion for a new trial, who stated that two of the officers who had them in charge spoke of the enormity of the offence, by saying that it was a worse case than Dyson’s, and one of them said that public opinion was against the accused. To my mind this presents a very satisfactory and even a conclusive reason for a new trial. The' purity of trial by jury must be strictly guarded. The verdict when rendered should command entire confidence; whatever may detract from that. confidence, must weaken the security which is felt by the community in this mode of trial. I adhere to the doctrine laid down in Hare's case, 4 Howard, 187,
■ which seems to me to apply here. The officer is required by the nature of his duty, as well as by an oath, not to speak to the •jury himself on the subject of their deliberations, or to permit others to do so. This ceremony is a mockery, if a violation has no other effect than to subject the officer to punishment. If he may speak to them himself he may permit others to do so, and the door is thus thrown open to tampering, and the safety of trial by jury is invaded to an alarming extent. The duly of the officer is prescribed for the protection of the accused. If improper influences have been employed, it is but a poor boon to say to him that the officer is liable. The’officer may be willing to incur the punishment for the sake of gratifying his wishes, or for reward. One who thus violates his duty and his oath, should be subjected to the severest possible penalties, but that • does not purify the verdict; it should be set aside. It is danger
The general rule is, that a juror shall not be allowed to impeach the verdict by disclosing his own' misconduct, or his motive, or opinion, or that of his fellows; but this is a different question. The jury are not involved in the misconduct of the officer; that isa matter over which they have no control. A juror may be received to testify to improper attempts of a party to the suit to influence the minds of the jury. Chews v. Driver, Coxe’s Rep. 166. On the same principle we should be allowed to state the misconduct of the officer, who may be the instrument of the party.
Judgment reversed, and cause remanded.
Concurrence Opinion
I concur fully in the result of the foregoing opinion. But I do not concur in that part of it, which relates to the affidavits of tfle jurors, in regard to the conduct of the officers who attended them.
In Prussel v. Knowles, 4 How. 95, this court said, the rule is well settled, “ that a juror shall not impeach his verdict.” Policy and prudence require, in my opinion, an adherence to the rule thus laid down. 1 In all other respects, the opinion in chief meets my cordial approbation.