Bailey v. State

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 816, n. 57; p. 826, n. 94; p. 1078, n. 46 New; 17CJ, p. 317, n. 10; Trial, 38Cyc, p. 1313, n. 95; p. 1314, n. 5, 8. This is an appeal from a conviction of manslaughter, followed by a sentence to the penitentiary for ten years. The appellant admits having killed the deceased, and offers as an excuse therefor that he was then temporarily insane.

The homicide occurred in a room occupied by the deceased in a boarding house in the town where the case was tried. Over the objection of the appellant, the court, maintaining its organization intact, visited and inspected the room in which the homicide occurred. The ground of the appellant's objection to this proceeding is that section 2720, Code of 1906 (section 2213, Hemingway's Code), under which the proceeding was had, violates section 26 of the Constitution in that the necessary implication of that section is, that the whole of a criminal trial must take place in the courthouse, the place designated by appropriate statutes therefor. The section contains no such requirement, and the statute here in question simply gives the court the power to do that in all cases which it had at common law the power to do in certain civil cases, 38 Cyc. 1313 et seq. All constitutional objection to the statute as it appeared in the Code of 1892 was removed by the amendment made thereto by chapter 62, Laws of 1894, pursuant to the holding of this court in Foster v.State, 70 Miss. 755, 12 So. 822.

The room in which the homicide occurred was small, and was entered from a hall. While the jury were in the room, the appellant, in the custody of a deputy sheriff, stood either in the door of the room, which was open, or in the hall, immediately in front of the door. This he claims was a violation of his constitutional right to be present while the jury were viewing the room. Assuming that he then objected to the jury being in the room without his also being therein, which fact the record seems to negative, he was to all intents and purposes in the room, for it and the jury were under his observation; the jury being within a few feet of him.

The hall opened onto a porch, the door to which was a few feet from the door leading from the hall into the room where the homicide occurred. The jury inspected this porch also, and some of the jurors went on the porch while the other jurors remained in the hall; the entire jury remaining in control of the bailiffs. When the court returned to the courtroom, the appellant moved to discharge the jury for the reason that the court was without power to view the scene of the homicide, that he was not in the room when it was examined by the jury, and that the jury had separated, as hereinbefore set out. The first of these two objections has been hereinbefore disposed of, and the third is wholly without merit.

The sheriff of the county was introduced as a witness for the state, and was asked if, in his opinion, the appellant was insane at the time of the homicide. An objection to this question on the ground that the sheriff had not qualified as an expert, was overruled, and he answered that, in his opinion, the appellant was sane. On being asked on what he based this opinion, his answer was that, when he arrested the appellant immediately after the homicide, he was nervous, but appeared otherwise to be normal. This evidence should not have been admitted, for the reason that the facts testified to by the witness were insufficient to justify the formation by him of an opinion as to the appellant's sanity that would be of any value to the jury. The admission of this evidence was, however, harmless, for the reason that there is nothing in the testimony that would have remotely justified the jury in finding that the defendant was insane at the time he killed the deceased, and the court might very well have declined to submit that issue to them. Jones v.State, 97 Miss. 269, 52 So. 791. It is manifest from the evidence that the appellant was perfectly sane when he killed the deceased, and that his reason for so doing was, as stated by him, "that he had destroyed my (his) home;" and the fact which reduces the killing from murder to manslaughter, and which justified the court in granting to the state a manslaughter instruction, to which the appellant here objects, was that the jury believed the appellant's statement that he killed the deceased immediately on discovering him in bed with his (the appellant's) wife.

Affirmed.