Schrader v. State

84 Miss. 593 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

Four assignments of error are pressed on our consideration, and relied on by appellant to obtain a reversal of the judgment by which, upon a conviction of murder, he was sentenced to the penitentiary for life. We will consider them in the order in which the occurrence or ruling on which they are based, respectively, arose during the progress of the trial:

1. The first assignment is that appellant did not have a fair and impartial jury, in that after the trial it developed that one of the jurors (Mann) had previous to the trial expressed the opinion that the appellant should either be hanged or sent to the penitentiary, and that neither the appellant nor his counsel was advised of this. It is, of course, true that if a juror, upon his voir dire, corruptly conceals an opinion then resting on his mind as to the guilt of the defendant, and is, by reason of this concealment, accepted as a juror by the defendant, this alone will in many cases cause a reversal of the cause. But the record now before us shows that, when examined as to his competency, this juror fairly and frankly stated to the court and counsel that he had both formed and expressed an opinion as to the guilt or innocence of the accused, but he further stated that this was not a fixed opinion, and would not affect him in arriving at his verdict after hearing the evidence; that he had conscientious scruples as to the infliction of the death penalty, and would not like to be on a jury that would hang a man. This was a full disclosure on his part, and advised the appellant and his counsel of the mental attitude then occupied by the juror. It is not contended that the appellant sought or desired to challenge the juror either peremptorily or for cause, and it is conceded that he did not exhaust the challenges granted him by law. In addition to this, the trial judge had this question presented for decision by the aiBdavits and testimony taken in support of the motion for a new trial. He also heard the denial of the alleged statement by the juror, and, upon full consideration of these conflicting statements, he upheld the competency, veracity, and impartiality of the juror, and refused to sustain the motion. We cannot, on the showing here made, disturb this finding of fact. Lipscomb v. State, 76 Miss., 256 (25 South., 158); Green v. State, 72 Miss., 522 (17 South., 381). This assignment therefore cannot be sustained.

2. The second ground of error insisted on is that it was error in the trial court to permit the state to prove that the same night, and a short time before the killing, there had been a difficulty between Connelly, the deceased, and one Anderson. An inspection of the record, as a whole, makes it manifest that this testimony was clearly relevant and admissible. Without the knowledge of this fact before the jury, the language and conduct of appellant would have been inexplicable; but, advised of this, it became evident that appellant on this occasion was actuated by his friendship for Anderson, and a seemingly determined design to take his part of the quarrel and force Connelly to engage in a difficulty with him personally. This testimony shed light upon the occurrence, tended to sustain the theory of the prosecution, and enabled the jury to correctly and justly weigh the conduct of the actors and to judge of their motives. For these reasons, it was plainly competent. Wharton, Crim. Ev., secs. 23, 24.

3. The third assignment'of error is that the court erred in refusing the ninth instruction asked by the appellant. This action of the court was proper, upon two distinct grounds: First, the same principle of law embodied in the instruction refused was granted to the appellant in two other instructions given to the jury in his behalf; second, the instruction was in itself erroneous and inaccurate, and charged the jury that they should acquit the defendant, even though they believed that he killed the deceased in a difficulty in which he was the aggressor, while armed with a deadly weapon, and without negativing the idea that defendant provoked the difficulty with the intention of using the deadly weapon for the purpose of overcoming his adversary; and this limitation must be expressed in an instruction which correctly presents the legal theory which was here sought to be announced.

4. The remaining- assignment is predicated of the language alleged to have been used by the prosecuting counsel in the court below, and, in considering this, we are not unmindful of the fact, that words from an attorney so gifted and eloquent as the gentleman who protected the interest of the state would probably have great weight with the jury. But we are unable to see that the language complained of was in any way objectionable or unfair to appellant; that it infringed upon the rule, or was a violation, in any degree, of the privileges of counsel. Viewed in the light of the whole record, and waiving the conflict a's to the exact expressions used, the line of argument indicated by the remarks excepted to, even if carried to its just and logical conclusion, would have been unobjectionable. Manifestly, therefore, it could not possibly constitute error when it was stopped, before fairly begun, by the objection of counsel for the appellant. The language employed does not come within any of the classes of argument condemned by this or other courts of last resort. It was not a misstatement of testimony. It was not an attack or an unauthorized reflection upon the character of the defendant, nor was it an appeal, direct or implied, to the passions or prejudices of the jury. It was legitimate comment on the proven facts attendant upon the homicide. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined, no well-defined bounds beyond which the eloquence of advocates shall not soar; and we find in this record no evidence that the speech under review in- -any manner trenched upon the proprieties or did any violence to the ethics of'advocacy.

We have given each of the assignments of error urged on behalf of appellant earnest and painstaking examination. We. have considered carefully the case here presented in all its phases. We find no error of law, and the record furnishes no reason for a belief that any verdict more lenient to appellant could or should be reached by a fair and impartial jury on any trial. The law was correctly expounded, and the verdict is amply supported by the proof.

Affirmed.