Whitten v. State

| Miss. | Mar 15, 1909

Nletcheb, J.,

delivered the opinion of the court.

This case is exceedingly close, not to say unsatisfactory, on its facts. No eyewitnesses testified except the defendant, whose evi■deuce maltes out a clear case of self-defense. To offset this testimony, the state relied upon certain physical facts and circum.stances, which were thought to suggest guilt. Certain witnesses testified that they believed that deceased was shot in the back of the head, since the bullet hole in the rear was smaller than in front, and because the hair seemed to be “tucked” into the wound in the back of the head. The observations of these witnesses, however, were all made before the blood was washed ■from deceased’s face. After the blood had been washed off, .several apparently reputable witnesses testified that there were unmistakable powder bums on the face, indicating that the .shot had come from in front in harmony with defendant’s theory. The pockets of the dead man had been rifled, but it is not unreasonable to suppose that this had been done by the •abandoned woman, who was an habitué of the loathsome dive in which this killing occurred. The defendant fled after the homicide, but this, though competent, of. course, is not a very weighty circumstance in this case. The scuffling sound heard by the witness McArthur and the ready proclamation made by ■defendant immediately after the shooting are not easy to reconcile with the theory of assassination and robbery. We make these observations to show that the case was delicately balanced, .and therefore one in which error counts for much.

It was shown on the motion for a new trial that the sheriff had spent a large sum of money from his private purse to secure the capture of defendant; that he was selected by certain indignant and interested citizens to aid the district attorney in the selection of the jury; that he sat by the prosecuting officer while the jury was being selected, and suggested what jurors to' accept and what jurors to reject; that the jury was formed in part, at least, from talesmen summoned by the sheriff through hisMeputies, after the regular panel and the special venire had been exhausted; and that these talesmen were selected in large measure from the towns of Marks and Lambert, where the sheriff was shown to be personally popular. The sheriff, a gentleman, of great candor and of unquestioned honesty of purpose, states that but for him the prosecution would have .amounted to very little, or words- to that effect.

In this close case we think the defendant carried too great a burden in having his case submitted to a jury composed of the sheriff’s friends, virtually chosen by him, and who had every opportunity to conclude that that officer was actively participating in the prosecution. We are not to be understood as holding that a district attorney may not confer with the sheriff, as he may with any other officer or citizen as to the personnel of a jury; but we do hold that where the scales are so delicately poised that the weight of a hair would turn the balance; it is burdening the defendant too grievously to try him with a jury so selected, with the sheriff’s partisanship so glaringly apparent.

Reversed and remanded.