This was a conviction in the circuit court of Oktibbeha, under an indictment for grand larceny. A'motion was made to set aside the verdict, and to grant a new trial,' which was overruled, and exceptions taken. The errors alleged to have occurred in the trial relate to this action of the court.
It appears, from the bill of exceptions, that after the jury had retired'from the. court to deliberate upon their Verdict, and before they had agreed, the bailiff, "to whose charge they were committed, said to them that “ unless they decided the case one way or the other, they should have nothing more to eat, and no water to drink.” This communication was made without authority, and was intended as a jest. Some of the jurors so understood it. Others, however, although not so informed, appear to have been under the impression that the’bailiff acted by order of the court. This conduct of the officer is' assigned as the first ground in support of the motion. " And it is insisted that the' declaration which he made to the jury, under the circumstances, ’ had, or might have had, an effect upon’ them prejudicial to the accused.
The conduct of the bailiff was improper and illegal. It was in violation of the express language of the statute, Eev. Code, 504, Art. 156. But the, immediate question to be considered is not whether the officer was guilty of a violation of the law, but whether the communication made to the jury was calculated to have an influence upon, their deliberations. prejudicial to the parties on trial. For it is not now to be controverted, that it is not every improper or illegal act of the officer in charge of' the jury, or of the jurors themselves, which will constitute just, cause for setting aside the verdict.
An officer placed in charge of the jury, under these circumstances, has no authority to furnish them with food or drink of any description whatever. If he should do so without the express command of the court, it would be a palpable violation of his duty. Whether, therefore, in this instance the jury were supplied with refreshments or not, did not depend on the volition of the bailiff’. And the supposition is not to be indulged that either the officer or the jury was ignorant of the law. It cannot, therefore, be assumed that the declaration of the bailiff that the jury should have no more food or water unless they decided the case one way or the other, if understood to be made without authority from the court, could have had the least influence upon their deliberations. And it will not be contended that if the bailiff acted by authority, there is just ground for suspecting the purity of the verdict. But admitting, for the purpose of argument, that the jury in fact believed that it depended solely on the will of the bailiff whether they were furnished with refreshments or not, it is not readily perceived in what way the communication of the bailiff could have influenced the verdict either for,or against the accused. It might furnish a motive which would accelerate a concurrence of the jury; and, going farther, and admitting that the motive thus presented might bo sufficiently potent to overcome their convictions of guilt or innocence of the accused, it is nevertheless manifest that its tendency would not be greater to produce a concurrence as to his guilt than as to his innocence. Indeed, it may be safely assumed, that if such a motive is allowed to have place
It appears, further, that, at the suggestion of one of the jurors, who was a physician, the bailiff carried “ liquor ” in a bottle into the jury-room for another one of the jurors, who was sick. This was done without the knowledge or permission of the court. The juror who was sick drank of the “liquor.” The bailiff did not see any other person drink, but did not know that no one else drank. The bottle of liquor was in the room a very short time, during which the bailiff was present, who carried the bottle with him.
Drinking, in any shape, is not to be tolerated in a jury, during the progress of the trial. The conduct and acts of the
The evidence in regard to' this point, we think, clearly Shows that lió effect could in any way influence the verdict resulted from the introduction of the bottle of “ liquor into -the jury-room. The officer does not in express terms state that no juror except the sick man drank of the brandy. But as he remained in the room during the whole time the bottle was' there, which ■was á very short lime, and'did not see any other juror drink,: siich is the effect of his testimony. Under these' circumstances,' notwithstanding the irregular and' improper conduct of the' bailiff and the juror, there is no pretense for asserting that the verdict should be disturbed. • ;
There is Another point made-upon-the introduction of the; jurors as witnesses on the'trial of the motion for a new trial: It is not to be questioned that their testimony was incompetent. Organ v. State, 26 Miss. R., 83. But as the presiding judge-did
Judgment affirmed.
The general rule is that the verdict Trill not he set aside on. account of the misconduct or irregularity of a jury, even in a capital case, unless it he such as might affect