Archer v. State , 140 Miss. 597 ( 1925 )

^* Headnotes 1. Criminal Law, 16 C.J., Sections 2250, 2261; 2. Criminal Law, 17 C.J., Section 3450 (Anno); 3. Criminal Law, 16 C.J., Section 2576. This is an appeal from a conviction of murder followed by a sentence to life imprisonment. The appellant claims to have killed the deceased in self-defense, and the evidence relative thereto was conflicting. One of the eyewitnesses to the killing, who had accompanied the appellant to the scene thereof, was summoned by the state, appeared at the trial, was sworn with the other witnesses, but was not introduced as a witness by either the state or the appellant. In his closing argument, as appears from a special bill of exceptions taken thereto, the district attorney used the following language:

"Counsel for the defense asked me if it is possible that the great state of Mississippi is attempting to suppress the testimony of Wiley Ladner, and asks me, ``Where is Wiley Ladner? Why hasn't the state given you the benefit of his testimony?' In reply I want to ask them where, oh, where is Wiley Ladner? He was the friend of Clarence Archer; Clarence Archer employed Wiley Ladner to drive from Kiln to the home of Raymond Mitchell; when they were at Kiln, Wiley was there; as they drove across the country Wiley was there; when they went to locate the buried treasure Wiley was there; he was with them at the time of the killing; he left with them after the killing. He was the friend of Clarence Archer and not of Travis Wheat, and in answer to their question. I want to ask them where, oh, where is Wiley Ladner."

This language was objected to by counsel for the appellant, but the ruling of the court thereon does not appear. The cause will be decided, however, as if it appeared that the objection was overruled. By another special bill of exceptions it is set forth that — When the jury came "into open court, and after they, or some of the members of the said jury had announced that they had agreed upon a verdict, and after the court had directed the clerk of the court to receive and read the said verdict, and after the reading thereof by the clerk, instantly, without the passage of any appreciable time, a certain juror, to-wit, S.O. Flynt, then and there fell down upon the floor of the courtroom as one dead, and so remained and continued for the space of from five to ten minutes, seemingly without life and certainly unconscious of everything, during which time he was attended by one or two physicians; that during a part of the time the said juror lay as one dead. Many spectators then and there in the courtroom pushed forward and crowded around the recumbent form of the said unconscious juror, and mingled themselves with the other jurors then and there before the bench of the court; that after the said juror was lifted from the floor upon which he had fallen as aforesaid, and while unable to stand erect, and while he may have still remained in a semi-unconscious condition, the court proceeded to and did, then and there, take a poll of the jury and of each and every juror, including the said S.C. Flynt, to all of which the defendant excepts."

This special bill of exceptions was signed by the trial judge, but thereafter he entered an order on the minutes of the court, and on the bill of exceptions itself, revoking it. On the motion for a new trial it was made to appear by evidence that this juror had spells of the character set forth in the bill of exceptions on other occasions; that his father and grandfather had both been committed to an insane hospital. The juror, Flynt, seems to have recovered from his nervous condition immediately after the jury was discharged, but he disappeared some days thereafter under circumstances strongly suggesting suicide. The evidence relative thereto other than that hereinbefore referred to indicates no defect in his mental capacity for jury service.

The errors assigned are: (1) That one of the state's instructions assumes that the evidence negatives the commission of an overt act on the part of the deceased; (2) that the court erred in permitting the district attorney to make the assignment hereinbefore set forth; and (3) that the appellant was deprived of his right to a poll of the jury. The first of these assignments of error is obviously without merit.

The failure of either party to examine a witness equally accessible to both is not a proper subject of comment before the jury by either of the parties, Brown v. State, 98 Miss. 786, 54 So. 305, 34 L.R.A. (N.S.) 811, but when as here counsel for one party comments on the failure of the other to introduce such a witness, counsel for the other party may reply thereto and indulge in proper comment thereon. 1 Thompson on Trial (2d Ed.) par. 987; 38 Cyc. 1501. The district attorney's statement of Wiley Ladner's association with appellant was in accord with the evidence, and his deduction therefrom that he was a friend of the appellant was legitimate. The charge indirectly but manifestly intended to be made by the district attorney that Ladner was absent with the connivance of the appellant should, of course, not have been made, for there was nothing in the evidence to warrant it. But the appellant cannot complain thereat since it was provoked by a similar unwarranted charge made by his counsel against the state.

This brings us to appellant's complaint that he was deprived of his right to a poll of the jury. Two questions are here presented: (1) Can the trial court revoke a bill of exceptions after it has been granted? and (2) Was the court below deprived of the power to receive and enter the verdict by reason of the fact that a complete poll of the jury was rendered impossible by the physical condition of one of the jurors?

Bills of exceptions of the character of the one here in question are governed by sections 795, 796, Code of 1906 (Hemingway's Code, sections 579, 580). Neither of these sections deal with the power of a trial court to revoke a bill of exceptions, but under the rule that a court during the term thereof has full control over all records made by it during the term, we must hold, in the absence of a provision to the contrary in the statute, that it has the power before the expiration of a term to correct or annul a bill of exceptions granted by it at that term. Of course, after the expiration of the term a bill of exceptions, in the absence of statutory authority therefor, cannot be amended or revoked (Dreyfus v.Cage, 62 Miss. 605), but should we hold to the contrary the same result must follow. A litigant, against whom a jury verdict has been rendered, has ordinarily a right to a poll of the jury, and a request therefor should be granted, if it is possible for the court to do so. James v. State, 55 Miss. 57, 30 Am. Rep. 496. It is not a right, however, which is vital, and in the vast majority of cases when exercised results in nothing favorable to the party demanding it. Nor is the polling of the jury a matter which affects the jurisdiction of the court, consequently if after a verdict has been received in the presence of all the jurors it becomes impossible for the jury to be polled, the court does not thereby lose the power to record and render judgment on the verdict. Humphries v. District of Columbia, 174 U.S. 190, 19 S.Ct. 637, 43 L.Ed. 944.

The appellant did not request the court below to delay the poll of the jury until the juror, Flynt, should recover sufficiently to say whether the verdict returned was his. Had such a request been made a different question might have been presented, as to which we express no opinion.

Affirmed.