Jenkins v. State , 148 Miss. 702 ( 1927 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 1249, n. 81 New; Homicide, 30CJ, p. 432, n. 72. Appellant was indicted, and convicted in the circuit court of Attala county of the murder of Jack McBride, and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.

The jury returned the following verdict into court:

"We, the jury, find the defendant guilty as charged, and certify that we are unable to agree upon his punishment, and beg the mercy of the court."

Without any request on the part of appellant that the jury be polled, with a view of ascertaining the meaning of their verdict, the verdict as returned was accepted by the court, and the jury discharged. Thereupon judgment was entered by the court, sentencing appellant to the penitentiary for the balance of his natural life.

Appellant made a motion for a new trial, the principal ground of which was that the verdict returned into court by the jury was void. The court rendered the following judgment overruling appellant's motion for a new trial:

"This day came on to be heard by the court the motion of the defendant, Toby Jenkins, praying for a new trial on account of the fact that the jury returned the verdict in open court as follows: ``We, the jury, find the defendant guilty as charged, and certify that we cannot agree as to his punishment, and we beg the mercy of the court.'

"And the court, having heard the motion, and having read and heard and understood the affidavit of certain jurors in this case, and having examined members of the jury in open court immediately after they were discharged as jurors in this case, finds that this verdict was not the true verdict of the jury.

"The verdict as rendered gave to the court no alternative except a sentence of life imprisonment in the penitentiary, when it was the intention, purpose, and desire of the jury, in rendering this verdict, for the court to be lenient with the defendant and gave him a short term of years.

"The court is therefore of the opinion that this motion is well taken, and that said verdict of said jury should be set aside, and that the defendant should be granted a new trial; however, on account of former rulings of the supreme court, the court in this instance is reluctant to set said verdict aside and follow what he thinks should be done, and for that reason he therefore overrules said motion with reluctance.

"It is therefore ordered and adjudged that said motion be and the same is hereby overruled, to which the defendant then and there excepts, and prays an appeal to the supreme court of Mississippi, which appeal is hereby granted."

Among the instructions given by the court for the state was the following:

"The court charges the jury, for the state, that in the event you find the defendant guilty of murder you may return one of the following verdicts, to-wit:

"First. ``We, the jury, find the defendant guilty as charged.' In which event it shall be the duty of the court to sentence the defendant to be hanged.

"Second. ``We, the jury, find the defendant guilty as charged, and fix his punishment at imprisonment for the rest of his natural life in the state penitentiary.' In which event it shall be the duty of the court to sentence the defendant to the state penitentiary for the rest of his natural life.

"Third. ``We, the jury, find the defendant guilty as charged, and certify that we are unable to agree on his punishment.' In which event it shall be the duty of the court to sentence the defendant to the state penitentiary for the rest of his natural life."

To sustain his position appellant relies on Owens v. State,82 Miss. 18, 33 So. 718, 21 L.R.A. (N.S.) 782, and Sykes v.State, 92 Miss. 247, 45 So. 838. In the Owens case the verdict returned by the jury was in this language:

"We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the court."

Thereupon the court asked each juror what he meant by his verdict. Their replies showed that none of the jurors meant that the death sentence should be imposed; that they meant by the word "term" that the defendant should not be imprisoned for life, the jurors differing as to the term of imprisonment the defendant should receive — their differences ranging from twelve months to life imprisonment. Whereupon the court entered a judgment fixing the penalty at imprisonment for life. The supreme court held that the verdict returned by the jury was insufficient to sustain the judgment of the court.

In the Sykes case the verdict returned was:

"We, the jury, find defendant guilty as charged, but cannot agree as to punishment, but do agree to ask the mercy of the court."

The court held that the verdict was indefinite, and the trial court should have required the jury to clear it up, but expressly declined to reverse the judgment upon that ground alone. The court said:

"We think it was error in the circuit judge not to have required the jury to clear up their manifestly cloudy verdict; but we would not be willing to reverse for this error alone."

We do not think those cases are decisive of the question here involved. In Traube v. State, 56 Miss. 153, the verdict returned was in this language:

"We, the jury, find the defendant guilty of manslaughter in the second degree."

A motion was made in arrest of the judgment upon the ground that the jury did not covict the defendant of any offense known to law, there being no degrees of manslaughter in this state. The motion was overruled. The court held that the words in the verdict, "guilty of manslaughter," constituted a full and complete finding by the jury of the issue submitted to them, and that the super-added words "in the second degree" were surplusage; that where a verdict contains a finding not embraced in the issue, or contains words which are without meaning and effect, and the striking out or disregarding of such irresponsive finding, or such meaningless words, leaves a perfect finding responsive to the issue, the verdict should be upheld, and judgment pronounced accordingly.

In Johnson v. State, 106 Miss. 94, 63 So. 338, the jury returned the following verdict:

"We, the jury, find the defendant guilty as charged, and certify that we are unable to agree upon the punishment, and in which event the accused will be sentenced to the penitentiary for the remainder of her natural life."

The court held that the language in the verdict, "and in which event the accused will be sentenced to the penitentiary for the remainder of her natural life," was mere surplusage, and did not render the verdict void.

In Smith v. State, 107 Miss. 574, 65 So. 498, the jury were plainly instructed by the court, as was done in the present case, as to the form and effect of the different verdicts they might render. The jury returned the following verdict:

"We, the jury, find the defendant guilty as charged, and disagree as to the punishment, and ask the mercy of the court."

When the verdict was returned, the jury were polled and answered that that was their verdict. There was no request made by the defendant that the court inquire of the jury as to what they meant by their verdict. The court held that the language in the verdict, "and ask the mercy of the court," was surplusage, and did not vitiate the verdict.

We think the reasoning of the Traube, Johnson, and Smith cases is decisive of this question against appellant's contention. The Smith case especially seems to be directly in point, and controlling.

It is argued, however, by appellant that the effect of the judgment of the court in passing on the motion for a new trial was to sustain the motion instead of overrule it. It is true that the judgment of the court in overruling the motion for a new trial recites that in the opinion of the court the motion should be sustained; but it recites, further, that to sustain the motion would be going contrary to the law of this state as settled by the decisions of the supreme court. In other words, the court took occasion to say, in overruling the motion for a new trial, that the judge holding the court differed with the supreme court as to what the law was, but was constrained to follow the law, and therefore overruled the motion for a new trial. What the trial judge thought the law ought to be had no effect on the judgment. The judgment as rendered is alone controlling.

We are of opinion that appellant had a fair and impartial trial; that, if error was committed by the trial court, it was without harm to appellant.

Affirmed.