146 U.S. 140 (1892), 1008, Mattox v. United States

Docket Nº:No. 1008
Citation:146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917
Party Name:Mattox v. United States
Case Date:November 14, 1892
Court:United States Supreme Court

Page 140

146 U.S. 140 (1892)

13 S.Ct. 50, 36 L.Ed. 917



United States

No. 1008

United States Supreme Court

November 14, 1892

Submitted October 31, 1892




When the trial court excludes affidavits offered in support of a motion for a new trial, and due exception is taken, and that court, in passing upon the motion, exercises no discretion in respect of the matters stated in the affidavits, the question of the admissibility of the affidavits is preserved for the consideration of this Court on a writ of error, notwithstanding the general rule that the allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed.

In determining what may or may not be established by the testimony of jurors to set aside a verdict, public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow it, but evidence of an overt act, open to the knowledge of all the jury, may be so received.

Perry v. Bailey, 12 Kan. 539, approved and followed.

On a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors as to the motives and influences which affected their deliberations is inadmissible either to impeach or support the verdict, but a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated on his mind, and he may also testify in denial or explanation of acts or declarations outside of the jury room where evidence of such acts has been given as ground for a new trial. Woodward v. Leavitt, 107 Mass. 453, approved and followed.

The jury in this case, an indictment for murder, retired October 7 to consider their verdict. On the morning of October 8, they had not agreed on their verdict. A newspaper article was then read to them, the tendency of which was injurious to the accused. They returned a verdict of guilty. Affidavits of jurors of this fact were offered in support of a motion for a new trial, and were rejected. Held that this was reversible error.

Dying declarations are admissible on a trial for murder as to the fact of the homicide and the person by whom it was committed, in favor of the defendant.

In this case, a few hours after the commission of the act and while the wounded man was perfectly conscious, the attending physician informed him that the chances were all against him, and that there was no show for him. He was then asked who did the shooting. He replied that he did

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not know. The evidence of this was received without objection. Defendant's counsel then asked whether, in addition to saying that he did not know who shot him, he did not say further that he knew the accused and knew that it was not he. This was objected to on the ground of incompetency, and the objection sustained. Held that this was error.

This was an indictment charging Clyde Mattox with the murder of one John Mullen about December 12, 1889, in that part of the Indian Territory made part of the United States Judicial District of Kansas by section two of the Act of Congress of January 6, 1883, 22 Stat. 400, c. 13, entitled "An act to provide for holding a term of the District Court of the United States at Wichita, Kansas, and for other purposes."

Defendant pleaded not guilty, was put upon his trial October 5, 1891, and on the eighth of that month was found guilty as charged, the jury having retired on the seventh to consider of their verdict. Motions for a new trial and in arrest of judgment were severally made and overruled, and Mattox sentenced to death. This writ of error was thereupon sued out.

The evidence tended to show that Mullen was shot in the evening between eight and nine o'clock, and that he died about one or two o'clock in the afternoon of the next day; that three shots were fired and three wounds inflicted; that neither of the wounds was necessarily fatal, but that the deceased died of pneumonia produced by one of them described as

in the upper lobe of the right lung, entering about two or three inches above the right nipple, passing through the upper lobe of the right lung, fracturing one end of the fourth rib, passing through and lodging beneath the skin on the right side beneath the shoulder blade.

The attending physician, who was called a little after nine o'clock and remained with the wounded man until about nine o'clock in the morning, and visited him again between eight and nine o'clock, testified that Mrs. Hatch, the mother of Clyde Mattox, was present at that visit; that he regarded Mullen's recovery as hopeless; that Mullen, being "perfectly conscious" and "in a normal condition as regards his mind," asked his opinion, and the doctor said to him: "The chances are all against you; I do not think

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there is any show for you at all." The physician further testified, without objection, that after he had informed Mullen as to his physical condition, he asked him as to who shot him, and he replied, "he didn't have any knowledge of who shot him. I interrogated him about three times in regard to that -- who did the shooting -- and he didn't know." Counsel for defendant, after a colloquy with the court, propounded the following question:

Did or did not John Mullen, in your presence and at that time, say, in reply to a question of Mrs. Hatch, "I know your son, Clyde Mattox, and he did not shoot me; I saw the parties who shot me, and Clyde was not one of them?"

This question was objected to as incompetent, the objection sustained, and defendant excepted. Counsel also propounded to Mrs. Hatch this question:

Did or did not John Mullen say to you, on the morning you visited him, and after Dr. Graham had told him that all the chances for life were against him, "I know Clyde Mattox, your son, and he was not one of the parties who shot me?"

This was objected to on the ground of incompetency, the objection sustained, and defendant excepted.

In support of his motion for new trial, the defendant offered the affidavits of two of the jurors that the bailiff who had charge of the jury in the case after the cause had been heard and submitted,

and while they were deliberating of their verdict, . . . in the presence and hearing of the jurors or a part of them, speaking of the case, said: "After you fellows get through with this case, it will be tried again down there. Thompson has poison in a bottle that them fellows tried to give him."

And at another time, in the presence and hearing of said jury or a part of them, referring to the defendant, Clyde Mattox, said: "This is the third fellow he has killed." The affidavit of another juror to the same effect, in respect of the remark of the bailiff as to Thompson was also offered, and, in addition, the affidavits of eight of the jurors, including the three just mentioned,

that after said cause had been submitted to the jury, and while the jury were deliberating of their verdict, and before they had agreed upon a verdict in the case, a certain newspaper printed and published in the City of

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Wichita, Kansas known as "The Wichita Daily Eagle," of the date of Thursday morning, October 8, 1891, was introduced into the jury room; that said paper contained a comment upon the case under consideration by said jury, and that said comment upon said case so under consideration by said jury was read to the jury in their presence and hearing; that the comment so read to said jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows:

The Mattox case -- The Jury Retired at Noon Yesterday and is Still Out.

The destiny of Clyde Mattox is now in the hands of the twelve citizens of Kansas composing the jury in this case. If he is not found guilty of murder, he will be a lucky man, for the evidence against him was very strong, or at least appeared to be to an outsider. The case was given to the jury at noon yesterday, and it was expected that their deliberations would not last an hour before they would return a verdict. The hour passed, and nine more of them with it, and still a verdict was not reached by 10:30 last night, when the jury adjourned and went to their rooms at the Carey. Col. Johnson, of Oklahoma City, defended him, and made an excellent speech in his behalf to the jury. Mr. Ady also made a fine speech, and one that was full of argument and replete with the details of the crime committed as gathered from the statements of witnesses. The lawyers who were present and the court officers...

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