65 Tenn. 159 | Tenn. | 1873
delivered the opinion of the court.
Joseph Odle was convicted of murder in the second degree, in the Circuit Court of Hancock County, for poisoning Peter Stewart, and sentenced to the penitentiary for ten years. He has appealed to this court.
The error mainly relied on for a reversal is in the alleged misconduct of the jury. It is shown by
Joseph Baker, one of the jurors, says the jury boarded at the house of Joseph Brooks, which house was small, with two small rooms. The jury, when eating, separated — one part went into to the eating-room and the other part stayed in the other room. The officer would eat with a portion of the jury in the eating-room, and others of the jury in the other room. Boyd Stewart, the prosecutor, and Vesta Stewart and Catherine Goodman, two of the witnesses for the State, were frequently about the house, both night and day and at meal-time.
The prosecutor, Boyd Stewart, was examined, and said that he took his meals at Joseph Brooks’ during the time the jury were out in the case; that he never spoke to ' any of the jury during the trial, nor while the jury were considering the cause; that he never was in the room with the jury only when the officer in charge was in the room with them.
Vesta Stewart and Catherine Goodman stated that neither of them at any time spoke to one of the
The rules in such cases., are clearly laid down in Hines v. The State, 8 Hum., as follows:
1. The fact of separation having been established-by the prisoner, the possibility that the juror has been tampered with, and has received other impressions than those derived from the testimony in court, exists; and, prima facie, the verdict is vicious.
2. The separation may be explained by the prosecution, showing that the juror had no communication with other persons, or that such communication was-on subjects foreign to the trial, and that in fact no impressions other than those derived from the testimony were made upon his mind.
3. In the absence of such explanation, the mere fact of separation is sufficient for a new trial.
In the present case the separation of the jury is shown, and the circumstances which caused the separation would be sufficiently explained, but for the additional facts as to the prosecutor and two of the State witnesses boarding at the same house. The house had only two rooms, and, as we understand-the affidavits, they were so small that the entire jury could not eat in the eating-room at the same time.
This produced the necessity of a separation while eat
In the case of McElrath v. The State, 2 Swan, 382, the court said: “We do not go the length of holding that the conduct of the prosecutor, however censurable, did not admit of explanation; but in a case apparently so flagrant, the explanation ought to be very ample and satisfactory, and sufficient to exonerate the prosecutor from the slightest imputation of ■either an intention or attempt to influence the jury, directly or indirectly.”
We are of opinion that this rule is strictly applicable to the facts of the present case, and that the •defendant is entitled to a new trial.