13 Tex. 168 (Tex. 1854), Jones v. State

Citation:13 Tex. 168
Opinion Judge:LIPSCOMB, J.
Party Name:GEORGE JONES AND NANCY JONES v. THE STATE.
Attorney:John Taylor, for appellants. J. G. McDonald, also for appellant.
Court:Supreme Court of Texas
 
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Page 168

13 Tex. 168 (Tex. 1854)

GEORGE JONES AND NANCY JONES

v.

THE STATE.

Supreme Court of Texas.

1854

Appeal from Madison.

John Taylor, for appellants. I. The Court erred in refusing to grant a new trial and refusing to arrest the judgment. The verdict was contrary to law and evidence.

1st. The Court ought to have granted a new trial on the principle of newlydiscovered evidence. The defendants had not been able to avail themselves of the testimony of Kissiana Jones because she was a co-defendant on the trial, and the Court had refused upon their application, upon the close of the evidence for the State, to refer the case to the jury as to her, although there was no evidence against her. In that state of the case it stood upon the legal principle of newly-discovered evidence, and it was material for it proved an alibi.

2d. The Court ought to have granted a new trial because the verdict was the finding of a drunken jury. That is the legal as well as natural inference from the fact established before the Court by the regular showing, that their Bailiff had been almost incessantly employed by them in packing (as they say) whisky for them to drink from the whisky shop to their room, and which they were drinking up to the very time when their verdict was recorded. They then characterized themselves as a drunken jury while they were deliberating upon and in the very act of finding this verdict. With such a fact judicially established before them no Court is warranted by the laws of Texas in sentencing an American citizen to be hung. In such a case it is mere hap-hazard whether the verdict is right or wrong, It is the most gross and infamous misconduct of which a jury could be guilty in the exercise of their functions, and on either ground it is imperative on the Court to grant a new trial.

The use of spirituous liquors, or the separation of the jury, or any misbehaviour, will vitiate the verdict of the jury. They are required by law to be kept without meat and drink, but more especially without intoxicating liquors. (Whar. Am. Crim. Law, 596, 597; McLean v. The State and Jernigan v. The State, 10 Yerger 241, 529; Moore v. The State, 5 Id. 55; Dennison v. Collins, 1 Cowan 111; Rose v. Smith, 4 Id. 17.)

The rule is the same in criminal as in civil cases especially as to the irregularity of the jury. (Ib.)

In the above cases, where spirituous liquors had been used, the Court was satisfied that it had not been productive of any evil consequences, and yet they held it vitiated the verdict. (Whart. Am. Crim. Law, 904.)

II. The Court erred in charges given to the jury and in refusing charges asked for by the defendants.

The first error in this respect committed by the Court was their refusing to refer the case on the motion of the defendants to the jury as to Kissiana Jones after the evidence on the part of the State had closed. This was error in the Court.

1st. Because there was no evidence to inculpate Kissiana Jones, but on the contrary the State in attempting to produce that produced evidence to exculpate her.

2d. The Court in such a state of the case had no discretion when such an application was made; it was not a matter of discretion with the Court, it was a matter of absolute right on the part of the defendants to have the case referred to the jury as to her and to have the benefit of her testimony.

A new trial could only be had as to murder in the second degree, of which the party stood convicted. (Whart. Am. Crim. L., 571, 572, 573, and the cases there cited.)

III. The Court erred in refusing to sustain the motion in arrest of judgment.

At the precedent trial George Jones had been found guilty of murder in the second degree. They obtained a new trial, and at the next Court were again put upon their trial upon the indictment as it originally stood as if no such proceedings had ever been had.

Now, I contend that the legal effect of the verdict at the Spring Term of the Court was to acquit George Jones of murder in the first degree; he never could, after that, be again put upon trial and subjected to a verdict and the finding of a jury upon that or any other indictment charging him with murder in the first degree in killing Allen Jones, and that of course extinguished the whole ground of the charge against Nancy Jones, for that was merely incidental to the charge of murder in the first degree against George Jones; and if the one could not again be put in jeopardy, neither could the other. The trying them, therefore, on the original charge the second time and convicting them was erroneous, and they could not avail themselves of it in arrest of judgment; it was not necessary to plead it specially, for it appeared on the face of the record. My proposition is this: That on the second trial they were put in jeopardy a second time. (See Wharton's Am. Crim. Law, 196-199, 205-215.

The first verdict was murder in the second degree. (See 1 Archibald's Crim. Law, 111, 112, in notes.

That that was the legal effect of the verdict is clear, upon legal principle as well as authority. For the verdict, by affirming his guilt as to the inferior, was a negation or denial of his guilt as to the superior crime. If the act charged were the one, it could not in its very nature be the other. It could not be either or both, indifferently, at the same time, and the jury, therefore, could not convict him of the guilt of the one without at the same time necessarily exonerating him from the guilt of the other.

That being the legal effect of the verdict, the moment it was recorded the new trial afterwards granted could not alter the case, for two reasons:

1st. With regard to George Jones, the new trial referred technically to the offense of which he had been convicted, murder in the second degree, and with regard to Nancy Jones, it was altogether nugatory, and could have no legal effect in any way whatever, for under the previous proceedings she had been finally and totally discharged. I mean according to their legal effect. And

2nd. The new trial being a subsequent proceeding and the parties having already stood exonerated by the effect of the previous proceeding, no act of the Court could then, in that respect, change the state of the case, either with or without the consent of the parties. Neither by any act of the Court, nor even by their own act, could they be put in jeopardy a second time for the same thing. And except as to the charge of murder in the second degree against George Jones, the indictment was dead; it was functus officio, and Nancy Jones could not be legally arraigned with him; there could be no accessories before the fact to the crime of murder in the second degree. The judgment, therefore, ought to have been arrested, and upon that ground I ask a final judgment for their discharge.

J. G. McDonald, also for appellant. I. The Court erred in refusing to grant a new trial.

1st. The jury having this case under charge indulged in drinking spirituous liquors. In People v. Douglass, 4 Cowan R., 26, the Court said, that " The mere fact of drinking of spirituous liquors is enough to set aside the verdict." In the above case it was very doubtful whether the two jurors drank, yet the Court granted a new trial.

2d. The jury separated while they had the charge against the accused under consideration, and unattended by an officer of Court mingled with other persons. ( Vide 11 Humph. R; 1 Swan R,, 256; 3 Tex. R., 35; 8 Humph. R., 597; 8 Smead & Marsh. R., 587.)

In case of separation the onus is on the State to show there was no tampering with the jury. (Hines v. the State, 8 Humph. R.; 10 Yerg. R., 241.)

II. The Court erred in excluding evidence on the trial which ought to have been received. In refusing to permit the case to go to the jury as to Kissiana Jones, so that the accused might have availed themselves of the benefit of her evidence. (3 Barbour's R., S. C., (N. Y.,) 17; 4 Coms. R., 546.)

Attorney General, for appellee. The first four grounds assumed in the motion for a new trial, 1st. That the verdict was contrary to law; 2d. Contrary to evidence; 3d. To the charge of the Court; 4th. That the Court erred in its refusal to give instructions asked, have been disposed of. The 5th and 14th, that the Court erred in refusing to discharge Kissiana Jones, or to submit her case separately to the jury for an acquittal that she might be a witness for her co-defendants, may be considered together; and also the 6th, " the materialty of Kissiana's evidence."

Upon the first two of the grounds here thrown together the following extract from Whart. Am. Crim. Law (2d Ed., p. 918) is decisive against the appellants. " When the indictment includes several defendants, one of them cannot regularly become a witness for the others; but if no evidence whatever be given against him he is entitled to his discharge and may be examined in behalf of the other defendants. Where there is any, even the least, evidence against him, he cannot be sworn, but the whole must be submitted to the jury together." But here, where the Judges are forbidden to interfere with the province of the jury in any way, as by compelling a non-suit or by summing up and charging upon the facts, the course tolerated in England by the authorities as shown by Mr. Wharton could not be allowed.

The fact that her testimony has now been rendered competent by her acquittal affords no ground for a new trial to her late co-defendants. (Whart. Am, Crim. Law, 916.)

The 7th, 8th, 9th, 10th, and 11th grounds alleged in the motion for a new trial except to the momentary separation of a part of the jury from their bailiff and the rest, to his purchasing whisky for them at their request, to...

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