62 So. 429 | Miss. | 1913
delivered the opinion of the court.
Appellant was convicted in the circuit court of Lincoln county of the crime of manslaughter and sentenced to ten years’ confinement in the state penitentiary. Deceased was a son of a man of great prominence and wide
The homicide resulted from the jealousy of the deceased about the relations of a woman of the underworld, his mistress, with appellant. By the testimony of this woman the state’s case was proven; in fact, if her testimony is to believed, the defendant was guilty of the crime of murder. After the organization of the jury the court put them in charge of two bailiffs, specially sworn, and instructed them to keep the jury together and not allow them to separate, and also to prevent any possibility of the jury coming in contact with outside influences. After the organization of the jury the record discloses a mélange of irregularity and errors.
First. The father of the deceased, and a witness for the state, over the protest of defendant, was permitted to testify that he had examined the room, the scene of the homicide, and found certain bullet marks in the walls thereof, and that in his opinion the party firing the shots must have been located at a certain place in the room. This opinion of the witness, if believed by the jury, was contradictory of the defendant’s evidence, and therefore it must have been prejudicial to his case before the jury. There is no pretense that the witness was an expert in the range of bullets, and in Foster v. State, 70 Miss. 755, 12 So. 822, the testimony of this witness with reference to the range of the bullet and the probable location of the person firing the pistol was held to be error. Speaking of this class of testimony, the court said: “Where, on a murder trial, the relative position of the accused and the deceased, at the time of the killing, is' a material inquiry, a medical expert who had made a post mortem examination may testify as to the point of entrance and exit, and the course and range of the ball through the body; but it is error to permit him to state his opinion that a hole in an adjacent wall was within the range, or
In total disregard of the instructions of the court, the sheriff, on the first night the jury was out, substituted another man for one of the sworn bailiffs; on the second night both of the sworn bailiffs were temporarily excused by the sheriff, and two other men substituted in their places. This substitution was without the knowledge of the trial court, and was not learned by the judge until after the verdict of the jury was rendered.
While the jury was considering the case, it appears from the testimony of one witness that some person had communication with the jury. This witness testified that he saw a man standing on the ground immediately under the window of the room in which the jury was confined, and he knew that he was in conversation with members of the jury, but was unable to tell what was said in this conversation. In explaining these circumstances,, upon the motion for a new trial, the state introduced a. witness who testified that while the jury was in the room he went about twenty feet from the window in question,, and near the courtyard fence, and from there had spoken to a member of the jury, but had no conversation with him about the case, or about anything else. It is not conclusive that this witness was the party referred to by the witness for the defendant, as, according to the testimony of defendant’s witness, the party referred to by him was not at the place where the state’s witness says he was when he spoke to a member of the jury.
After the jury had been considering the case for two days, the trial judge, in pursuit of private business, left the courthouse and the county of Lincoln and went into an adjoining county, the county of Copiah, and remained absent from the jurisdiction of the court for seven or eight hours. Speaking of a ease exactly like this, the
While the judge was absent, it appears that the bailiffs in charge of the jury took the jury out in the city of Brookhaven and allowed them to separate,- three of the jurors going into a barber shop and the balance of the jurors going across the street, 60’ or 80 feet away, and out of view of their fellow jurors. One of the bailiffs remained with the three jurors in the barber shop. It is shown that one of the barbers, while shaving one of the jurors, asked the juror about the case on trial, and secured from him the information that the jury then stood ten for conviction and two for acquittal. This occurred a short while before the return of the verdict of the jury. It is shown, also, that no one in the barber shop was advised that the three jurors being shaved were members of the jury trying a man for a capital offense, and that while the jurors were in the barber shop a discussion went on between the by standers about this case, though it is not shown that anything said tended to prejudice the defendant.
During the absence of the judge of the court, by agreement of counsel, and at the request of the attorneys interested in the case, a member of the bar presided as
The trial judge, in overruling the motion for a new trial, said that the record of the trial was as clean as a hound’s tooth, meaning thereby that there was no error in the record. We regret that we find ourselves unable to agree with the trial judge. We do not wish to be understood as approving the decision of the Court of Appeals of Georgia; yet we must say that it is difficult to discover any fault in the reasoning of the court.
It is probable that the error in permitting- the state’s witness to give his opinion of the position of the accused when he fired the shot found in the wall of the room would not suffice to reverse this case. Taking the entire record, however, it is evident to this court, that the trial of this defendant did not proceed upon the safe line necessary to the preservation of the rights of the defendant, and it cannot be said, with any degree of confidence, that the many irregularities and errors did not coiatrihute to ,the result reached by the jury; on the contrary, it seems to us, in the nature of things, they must have exercised a potent influence.
Two of the jurors, without objection from the state, were permitted to testify that they did not believe at the
This court is loath to disturb the verdicts of juries, unless it appears that some error has been committed which must have prejudiced the accused; but in this case it is impossible to say that the errors did not prejudice the accused and the case is therefore reversed and remanded.
Reversed and remanded.