May v. State , 98 Miss. 584 ( 1910 )

McLain, C.

Appellant was indicted, tried, convicted, and'sentenced to the penitentiary for life, in the Kemper county circuit court, for murder, and from this action of the court he appeals to this court.

There are numerous assignments of error presented to this court for its consideration; hut we will only consider the eighth and ninth assignments, and in doing so we will consider them together. These two assignments read as follows: “(8) It was error to overrule the motion of defendant for a new trial, because of communication having been had with the jury during their deliberations, which communications were by the sheriff and the bailiff of the jury, and were prejudicial to appellant and in violation of law, and that the said communications influenced the verdict of the jury, coercing them to render ■a verdict that was not their free and voluntary conclusion, and which was coerced by the conduct of the judge and said officers. (91) It was error in the court to state to the jury, when they reported the second time that they could not agree, that that was no verdict, and that he had from said time until the 1st day of January in which to have said verdict rendered and received, and that it costs money and time to try cases, and that it was a dangerous precedent, and that it was no child’s play, and afterwards said to the sheriff and one of the bailiffs of said jury that he was going away from De Kalb, Mississippi, on Wednesday morning, the 17th, and would return Friday, the 19th, if needed; that he had some habeas corpus cases to try in Meridian, Lauderdale county, Mississippi, on Thursday, the 18th, and if he was needed the sheriff could phone him; it being shown by the record that said statements of the court were communicated to the jury and the verdict of the jury was no doubt rendered to prevent being the victim of the judge’s threat.”

The record of this case discloses that this cause was submitted to the jury between nine and ten o’clock bn Monday night. It further shows that early on Tuesday morning the jury reported to the court that they could. not agree or rather stated to the court that they had agreed to disagree, and the judge stated to the jury that that was not a verdict, and that he had from then until the 1st day of January in which to have a verdict, rendered and received, and that it cost money and time-to try cases, and that it was a dangerous precedent, and that it was no child’s play, and he refused to discharge the jury, and sent them back to consider of their verdict. We do not think the court committed any error in having the jury to retire to further consideration of a verdict. The record shows that the judge was very anxious to-get away to Meridian, and while the jury was out he said in substance, in the presence of the sheriff and one of the bailiffs, that he was going away from De Kalb on .Wednesday morning, the 17th, and would return Friday, if needed, and that he had some habeas corpus cases to-try in Meridian on the 18th, and if he was needed the sheriff could phone him, which statements of the court, were communicated to and made known to the jury some time during the day and prior to the rendering of their verdict. These statements were made by the judge with no intention that they should be told to the jury; but. unfortunately, without the knowledge or the consent of the judge, they were communicated to the jury. During that day the jury returned a verdict, “We, the jury,, find the defendant guilty, and ask the mercy of the court.” The jury was interrogated at length by the court and the attorneys as to the meaning of their prayer for mercy of the court. It appears that no two jurors scarcely had the same view as to what it meant. The court said in substance to the jury: “If you want a guide as to the law for the state, if you want to return a verdict, there is your guide, the fourth instruction. If you wish to study all the instructions for the state and for the defendant, and if you desire to deliberate over the whole thing again, you can do so.” Soon thereafter the jury returned a verdict in proper form, upon which he was sentenced to the penitentiary for life.

Upon a motion for a new trial in this case, it is true, the jurors testified that they were not coerced into a verdict, and that their verdict was not influenced by the communication by the bailiff to them, by the remarks of the judge to the effect that he expected to go to Meridian and remain until Friday, nor were they influenced by the other remarks of the judge. This record shows that this is a very close case upon the facts. Taking that into consideration, along with the facts upon which this assignment of error is based, we are unwilling to affirm that no harm resulted to defendant from these improper remarks and communications to the jury, though independent of the fact of the closeness of the case upon its merits, we think, under all the facts and circumstances disclosed by this record, that the improper communications to the jury are within themselves sufficient to warrant a reversal of this case. Such communications to the jury as are disclosed by -this record are presumed to be prejudicial, and this necessitates a reversal. Such has been the uniform holding of this court. The reasons leading to such a conclusion are founded upon solid principles of law. The jury when it retires to eonsidér its verdict, should be left absolutely free from any and all outside influence. When it retires, it is supposed to be alone and in seclusion, so to speak, there to consider the case submitted to them with perfect freedom. This very question has been so thoroughly considered and so elaborately discussed in former decisions of this court that we feel that it is not necessary to discuss it further. It cannot be enlarged upon. We will therefore content ourselves by. citing those cases that are, in a more or less degree, controlling of the question here presented: Shaw v. State, 79 Miss. 577, 31 South. 209; Brown v. State, 69 Miss. 398, 10 South. 579; Tarkinson v. State, 72 Miss. 731, 17 South. 768; Senior & Sons v. Brogan, 66 Miss. 178, 6 South. 649; Barnett v. Eaton, 62 Miss. 768; Green v. State, 53 South. 415.

Reversed and remanded.

Per Curiam. The above opinion is adopted as the • opinion of the court, and, for the reasons therein indicated by the commissioner, the case is- reversed and remanded.