Smith v. State, 60 So. 330

Smith v. State

60 So. 330 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

Appellant, having been convicted of the crime of murder and sentenced to life imprisonment in the state penitentiary, appeals to this court. On the evidence, which was in hopeless conflict, his guilt was a question of fact-for-the jury.

*370After a jury had been impaneled to try this cause, and while the examination of the first witness introduced by the state was being conducted, a telegram was received for one of the jurors, notifying him of serious illness in his family. It was agreed by counsel, representing both the. state and defendant, that the juror should be excused, which was accordingly done. Defendant then requested the court to retain the remaining eleven jurors, and to complete the panel, offering to waive all right of challenge to these eleven men, and to use in the selection of the twelfth juror only his remaining peremptory challenges, which amounted to seven; he having exhausted five in the selection of the first jury. The court declined to grant this request of the defendant, entered a mistrial, and awarded a new special venire on request of the state, from which special venire the jury which actually tried the case was afterwards impaneled.

If the court committed any error in discharging this first jury and impaneling another, such error cannot be cured by now reversing the judgment and remanding the case for a new trial. Appellant’s complaint is that he was not tried by the eleven men who remained on the jury when the twelfth man was excused; but, should we reverse the judgment, we could not, of course, direct the court to restore the status quo of the trial at the time the juror was excused. A reversal'would simply mean a trial by a jury other than the one composed of the original eleven, and this defendant has had.

When one of the venire summoned for the second jury was being examined on his voir dire, it developed that he “was the husband of the second cousin of the uncle by marriage of the deceased,” whereupon he was challenged by the state for cause, which challenge was by the court sustained, and appellant now claims that this challenge was erroneously sustained, and that he was greatly prejudiced thereby. A complete answer to this contention is that, under section 2685 of the Code, the exclusion of a juror from the panel cannot be assigned for error.

*371Appellant next contends that he was greatly prejudiced by reason of the fact that he was indicted under the name of Homer Smith, and that when the evidence came- in, and it developed that his name was Omar, and not Homer, Smith, the district attorney was permitted by the court to amend the indictment so as to charge his real name— Omar Smith. Counsel have overlooked section 1508 of the Code, by which this amendment is authorized.

After one of the witnesses for the state, named Pope, had testified, appellant learned that he could impeach Pope by showing contradictory statements made by him to one Joe Albritton. He then asked that Pope be recalled, so that he might lay a predicate for the examination of Albritton; but in the meantime Pope had left the courthouse, and had gone to his home, which was about fifty miles away. Counsel complain that the court erred in not suspending the trial until Pope’s evidence could be obtained, so that they might lay the necessary predicate for his contradiction. It is immaterial whether or not the court erred in declining to stay or continue the trial in order that the testimony of this witness might be obtained, for the reason that a judgment will not be reversed and a new trial granted, the only effect of which would be to enable an appellant to impeach the credibility of a witness.

Appellant contends, next, that the court erred in granting the eighth and eleventh instructions asked by the state, which the reporter will set out in full; the eighth for the reason that it “is misleading, because it. omits the grade of the crime altogether,” and the eleventh for the reason that it “is an attempt to do what this court has frequently condemned — define a reasonable doubt.”

The court committed no error in granting the eighth charge. It was not intended, and could not have been understood as intended, to instruct the jury with reference to the grade of the offense. Full instructions along this line are contained in other charges of the court. The eleventh instruction does attempt to make more plain *372one of the most exact and easily understood expressions known to the law — one which any man with sufficient intelligence to be a juror could not misunderstand. This attempt to define the phrase “reasonable doubt” is by the method of inclusion and exclusion; and’while it probably was of no assistance to the jury in arriving at its verdict, and could very properly have been refused, nothing contained in it lessens either the quantity of evidence or degree of proof required for conviction. Such was not the ease with instructions condemned in Brown v. State, 72 Miss. 95, 16 South. 202, and Burt v. State, 72 Miss. 408, 16 South. 342, 48 Am. St. Rep. 563.

Even should we hold that the court erred with reference to the last three matters herein discussed, such errors would not warrant us in reversing the judgment; and we do not understand counsel to so contend, for in their brief they say: “We do not, however, insist that these two charges, standing alone, or that the improper admission of testimony, or the depriving us of the benefit of Albritton’s testimony to impeach Pope, are alone reversible errors; and they are only pointed out to show, in connection with the evidence, and all the graver errors of the court heretofore enumerated, that the defendant did not have that fair and impartial trial which it is the duty of this court to see that he gets under the Constitution.”

A juror named Elliott on his voir dire examination stated “that he had neither formed.nor expressed an opinion in the case, and he had no impression, bias, or leaning, or preference, as to how his verdict should go in the case.” One of the grounds of the motion for a new trial is that this juror had in fact formed and ’ expressed an opinion before he was summoned as a juror, and consequently was not impartial. In support of this allegation, it was shown that Elliott was a member of the jury at a former term of the court, when this case was called for trial, but continued. Two witnesses testified that immediately after the trial they had a conversation with Elliott, in which he told them that “he had heard the case *373talked of a great deal, lie had no idea they would take him, . . . that he was not asked the questions concerning that part of it;” but they stated that he did not tell them that he had formed or expressed an opinion as to the guilt or innocence of appellant. Another witness', a deputy sheriff, who summoned Elliott to testify on the motion for a new trial, stated that Elliott told him that he had told these two witnesses “that he had his mind made up to convict him (meaning appellant) before he was accepted on the panel as a juror; I asked him did he say that, and he said he'did; I asked him if he meant it, and he said, “Yes.”

It will be observed that these statements are not alleged to have been made by the juror before he was impaneled as such, but are simply admissions made by him after verdict. All of the statements were incompetent, and should not have been considered by the court. A juror, will not himself be permitted, even under, oath in open court, to impeach his verdict; and for much greater reason he should not be permitted to impeach it indirectly by making statements relative thereto to third parties out of court and not under oath.

But, even if this evidence is competent, we could not reverse the judgment on this ground. The juror himself testified at length in support of his verdict, and there is. nothing in the evidence which indicates that his testimony should be rejected and the testimony of the impeachr ing witnesses accepted. Where questions of fact are submitted to and decided by the trial judge, his findings will not be disturbed on appeal, unless they are clearly and manifestly wrong. The rule in this respect is the same at law as in equity. “ In Cannon v. State, 57 Miss. 147, Lipscomb v. State, 76 Miss. 223, 25 South. 158, and Schrader v. State, 84 Miss. 593, 36 South. 385, it was held that the finding by a trial court on a motion for a new trial that a juror was not hostile to the accused will not be reversed, where the testimony on the subject is conflicting. This *374rule was necessarily qualified by the Dennis case, 91 Miss. 221, 44 South. 825, but only to the extent that such finding will be reversed when clearly and manifestly wrong.

Affirmed.