White v. State , 142 Miss. 484 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 1080, n. 79; Homicide, 30CJ, p. 440, n. 99; p. 441, n. 16 New; p. 452, n. 38; Instructions respecting grade of offense in homicide, 13 R.C.L., p. 759; 3 R.C.L. Supp., p. 80. Shirley White was convicted in the court below of manslaughter on an indictment charging him with murder in the killing of Lonnie Wooten, and was by the court sentenced to a term of twenty years in the state penitentiary.

When the record was originally presented here, a copy of the judgment and the transcript showed only eleven jurors named as trying the case, whereupon, by certiorari, the record has been corrected and this point argued in the briefs is eliminated.

Conceding and agreeing that counsel for the appellant are correct in their statement that the facts of the case show that the homicide was murder or self-defense, we desire to state now that the question of giving the manslaughter instruction under such circumstances as being assignable for error has, we think, been finally determined by this court in the cases of Calicoat v. State, 95 So. 318, 131 Miss. 169, Strickland v. State, 95 So. 318, 131 Miss. 169, and Stevenson v. State, 100 So. 525, 136 Miss. 22. Under these cases the action of the court below in granting an instruction defining manslaughter and authorizing the jury to find a verdict of guilty of manslaughter was not error.

Much of the space of the several briefs of counsel filed in this case is devoted to this question which we here notice for the purpose of saying that we decline to overrule the above cases, as this doctrine is too well understood and too thoroughly established by this court to be now disturbed or overruled.

We find no reversible errors in the record as to the testimony admitted or excluded.

Something is said in the assignment of errors and in the briefs of counsel about a revival meeting being held in the courthouse yard during the progress of this trial. It is sufficient to answer with reference to this assignment that nothing prejudicial to the interests of the defendant is shown to have occurred in and about this revival, and we cannot hold that revivals per se are injurious because held near a courthouse where nothing transpired or is shown to have occurred with reference to the jury. It is not even shown that any member thereof heard anything connected with the revival services.

It is assigned for error that the court permitted the deputies (the bailiffs) in charge of this jury, J.Y. Dempsey and W.C. Winborn, to inform the jury while considering the case and before they reported their verdict into open court, that "another negro had just been killed in the town of Louisville;" that this information unlawfully given and received in the jury box greatly prejudiced said jurors and gave them an unlawful opportunity to be affected by such information.

On motion for a new trial, much testimony was taken as to the above-quoted remark by one bailiff to another occurring after they had retired to consider their verdict and probably after they had voted to convict the defendant of manslaughter. This remark was not made in the presence of the court, and the quotation above appears to have been the remark of one bailiff to another as one was going into the door of the jury room. It is true that it is the effort of the courts to see that a jury tries a case from the beginning of the trial to the end untrammeled and uninfluenced by extraneous statements or circumstances, but this remark here cannot be distorted in any wise as relating to or referring to the defendant's case then on trial, and no reason can be deduced therefrom that it would be possible for any single juryman to have been influenced in his verdict in this case in the slightest degree. It is clear that the jury were not at the time deliberating on their verdict when this remark was made, and, while the bailiffs should be enjoined by the court not to carry on conversations in the presence of the jury, still, when the verdict is attacked and is sought to be declared void, some taint therein must be shown. In the case of Ned v. State, 33 Miss. 364, some communications from outside persons were shown to have occurred with members of the jury, but it was further shown of what the communication consisted and that the same had no bearing or reference to the case then on trial.

In the instant case no undue influence is shown to have occurred which might reasonably be presumed to have had the slightest effect upon the verdict of the jury. This record does not disclose any sort of opportunity for improper influence to have been exerted on this jury or any member thereof.

From the standpoint of this court, this defendant has had an impartial trial at the hands of a fair and impartial jury, and we find no reversible error therein.

Affirmed.