2 Morr. St. Cas. 1624 | Miss. | 1871
In this case, the prisoner was indicted at the November term, 1869, of the criminal court of Warren county, for the murder of Amanda Woods, his wife, and at the ensuing February term of said court, was found guilty by the jury.
A motion was made for a new trial and overruled, and sentence of death was pronounced upon him by the court, and from that judgment the prisoner prosecutes here this writ of error.
It appears from the record, that the prisoner having been arraigned at a former term of the court, was put upon his trial at a subsequent term, on the 14th day of February, 1870, and the jury having heard part of the evidence, were on motion of the prisoner’s counsel permitted to disperse and go at large, under the instructions of said court, until 10 o’clock of the next morning. At that hour, the jurors met the court and the trial proceeded, and all the evidence given in the cause having been heard by the jury, they were, in the evening of that day, again permitted to disperse under the instructions of the court until 10 o’clock the next morning, by the consent of the defendant’s counsel and that of the prosecuting attorney.
It appears from the affidavit of Oooly Mann, the deputy sheriff, which was read upon the trial of the motion for a new
The main question presented by this record for our decision is, whether, for these separations of the jury, a new trial ought to be granted.
It is of the utmost importance to the administration of justice, that the purity of the trial by jury should be preserved. And time and experience have shown the wisdom of the common law, which forbids the separation of a jury in the trial of a capital case before they have been discharged of the prisoner, and an adherence to which, modified as it has been in some of its harsh features, by modern practice, is best calculated to effect that end. Departures from the common law rule in capital cases, should be as few as possible, and only allowed in extreme cases, and never for the comfort or convenience of the jurors, For if this were allowed, it is not too much to say that few influential culprits would ever be convicted, and that few friendless ones, pursued by powerful prosecutors, would escape conviction. Jurors areas open to prejudice from persuasion as other men; and neither convenience, comfort nor economy ought to be consulted, in order to guard against it. When selected to perform the important duties of jurors, they are withdrawn from the crowd, and must, necessarily, be subjected to some wholesome legal restraints for the purpose of guarding them against improper influences, and to secure that confidence in the honesty and purity of their action, so essential to the administration of justice. Let them have every comfort compatible with their duties ; but let them not be exposed to the influence of those who might pervert their judgment. The stream of criminal justice should be kept as pure as possible, and not be thus exposed to the chances of pollution from extraneous influences.
In the case of Hare v. the State, 4 How., 187, Chief Justice Sharkey, in delivering the very able and lucid opinion of the
In the case of Organ v. the State, 26 Miss., 83, the court say: “ If any separation is to be allowed, without incurring the imputation of irregularity, for what length of time and for what purpose may it be ? How frequently may it be
And we think that the purity and integrity of this mode of
But, in all other cases of irregularity, in which it may be made to appear that the jury, during the trial, have been exposed to improper influence which might have affected the purity of their verdict, such exposure shall vitiate the verdict, unless it affirmatively appear that such influence failed to have any effect in procuring it.
In this case it is suggested by the counsel for the State that if there was any error in permitting the jury to separate, it was cured by the consent of the prisoner. We do not agree with counsel in this view of the law. We are of opinion that the court has no power to authorize the separation of the jury during the trial of a capital case, either with or without the consent of the prisoner, except in cases of great necessity; and if it be done, and the prisoner be found guilty, a new trial will be granted. The prisoner ought not to be asked to consent. Who dare refuse to consent, when the accommodation of those, in whose hands are the issues of his life or death, is involved in the question? He would have to calculate the chances of irritation from being annoyed by a refusal on the one hand, and of tampering on the other. • No consent of the prisoner, in the extremity of his need, ought to bind him. He may really be unwilling to permit
For these reasons the judgment must be reversed, and the case remanded for a new trial.
Judge Simrall not sitting in this case.