State v. Harrison
| Decision Date | 01 October 1892 |
| Citation | 15 S.E. 982,36 W.Va. 729 |
| Parties | STATE v. HARRISON. |
| Court | West Virginia Supreme Court |
Submitted Sept. 12, 1892.
Syllabus by the Court.
1. A mere separation of a jury will not entitle the person to a new trial; but where there has been an improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of the presumption that such separation has been prejudicial to him, and the burden of proof is upon the state to show beyond a reasonable doubt that the prisoner has suffered no injury by reason of the separation. If the prosecution fails to do this, the verdict will be set aside.
2. The same rule should be applied to all cases of misconduct or irregularity by the jury during the trial which are of such a character as to raise a presumption that the prisoner was prejudiced thereby.
3. The testimony of jurors may be received to disprove or explain any such separation, misconduct, or irregularity; but their testimony will not be received to show by what motive they were actuated, or that any admitted fact, misconduct, or irregularity had no influence or effect upon their minds in producing the verdict. In any case, where proper at all, the testimony of jurors should be received with great caution.
4. Mere business conversation by a juror with another person entirely foreign to the case on trial, in the presence and hearing of the sheriff and the other jurors, will not avoid the verdict.
5. A new trial will not be granted in a criminal case for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as a juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered by the exercise of ordinary diligence, unless it appear from the whole case that the prisoner suffered injustice from the fact that such juror served in the case. In determining this the court should look only to the evidence touching such cause of challenge; not to the evidence on the trial as to the prisoner's guilt.
6. To set aside a verdict because of an opinion entertained by a juror before he was sworn, it ought to appear that such opinion was not merely unsubstantial and hypothetical, but such as would have excluded him from the jury had it been known before he was sworn.
7. A motion for continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and though an appellate court will supervise the action of an inferior court on such motion, it will not reverse the judgment on that ground, unless such action was plainly erroneous.
8. Where a continuance is asked to procure the evidence of a witness not resident in the state, the affidavit should state not only the bona fide belief that such evidence can be procured, but the grounds of such belief, in order that the court may see that the belief is not merely a hope, but a well-founded, reasonable expectation, that it will be procured.
9. A court must see reasonable ground to doubt the sanity of a person about to be tried for felony before impaneling a jury to inquire as to his sanity. The court may inspect and examine the prisoner, consider his action and demeanor, read affidavits, inquire of physicians and others touching his then mental condition. The decision of the trial court will have a very weighty, if not conclusive, influence in the appellate court, and will not be reversed, if at all, unless it very manifestly appears that the decision was wrong, or that the court abused the discretion lodged with it by the statute.
10. A person partially insane is yet responsible for a criminal act if at the time of the act he knows right from wrong, and knows the nature and character of the particular act and its consequences, and knows that it is wrong, and is hurtful to another, and deserves punishment. In such case no mere irresistible impulse to do the act will exempt him from criminal responsibility for such act.
Error to circuit court, Cabell county.
Allen Harrison was convicted of murder, and brings error. Affirmed.
Marcum Peyton & Marcum, for plaintiff in error.
Alfred Caldwell, Atty. Gen., for the State.
On the 14th day of April, 1892, Allen Harrison was sentenced to death by the circuit court of Cabell county for the murder of Bettie Adams, and he comes to this court for relief from that sentence. Should the verdict be set aside because of separation of the jury? Between 12 and 1 o'clock at night a juror rose from his bed, and went to the water closet of the hotel where the jury boarded, to answer a call of nature. The deputy sheriff in charge of the jury unlocked the door of the room wherein the juror slept, and went with him into the hall leading to the closet, and saw that no one was in the hall, and saw that the door of the closet was open, and saw no one in the closet, and says no one was in it, though there was a portion of the closet--the two apartments containing the bowls--which he could not see from where he stood; and the juror walked down the hall 40 or 50 feet to the closet, the sheriff returning to bed, but listening, and the juror remained absent from four to eight minutes, and returned to the room. There were some rooms along the hall towards the closet, occupied perhaps by others, one by the high sheriff. Without regard to the statements of the juror, it does not in any manner appear that this juror mingled with, saw, talked, or had any sort of communication, with, any persons while absent. The facts that it was at the dead hours of the night, that the hall was clear of persons, and that the apartment to which the juror went was not like the public rooms of an hotel, but a water-closet, render it highly improbable that the juror met or conversed with any one. In all the Virginia and West Virginia cases where verdicts have been set aside on account of separation of the jury, it appeared that the juror during the separation mingled and talked with other persons, or had ready opportunity to do so. I hardly think that where it safely appears that the juror has no communication, nor opportunity for it, the mere separation, if we can call it "separation" in a legal sense, would vitiate a verdict. But if we can read and credit the statement of the juror in question, then the fact that he had no intercourse or opportunity for it, with any other person, will not depend simply on the probability arising from the facts above stated; for he states that he neither spoke to nor saw any one while so absent. That we can consider the juror's statement is shown by the syllabus and opinion in State v. Cartright, 20 W.Va. 32, and instances in Virginia cases therein cited, (page 43,) which are binding on us, in which affidavits of jurors were received. We cannot read that portion of the affidavit wherein the juror states that he did not go to the closet for any improper purpose connected with the trial, and that his absence had no influence upon his verdict, but we can read its state ment that he met with no one, saw no one, talked with no one. There is no showing in the slightest degree to the contrary; and if we give this affidavit any weight, corroborated and rendered probably true by the other circumstances spoken of, we must be satisfied that its statements are true. Would it not be a stigma and reproach upon the administration of criminal law to reverse a solemn trial for such a cause, we being confident that the prisoner suffered no harm from the occurrence? Separation merely does not necessarily annul a verdict; it does so only prima facie. Two Virginia cases are spoken of as holding that separation per se annuls the verdict,--McCaul's Case, 1 Va. Cas 271; Overbee's Case, 1 Rob. (Va.) 756. Perhaps I may add Wormley's Case, 8 Grat. 712, though Judge RIVES, in Philips' Case, 19 Grat. 541, says, perhaps correctly, that it is not to be interpreted as so holding. In none of these cases is there any reasoning by the court, except in McCaul's Case, and in it Judge NELSON, after saying that the one view of the subject was that the law required the jury to be kept entirely inaccessible, so that communication with them would be impossible, and the other view was that mere separation, unless it be proved that there has been some conversation or tampering with a member of the jury, shall not vitiate a verdict, and there must be proof to work this effect, disclaims a decision of the general principle, saying the court was not called on to decide between the two views, and would decide only whether the separation in that particular case should overthrow the verdict. But later and well-considered cases hold that mere separation will not per se impair a verdict. State v. Cartright, 20 W.Va. 32; State v. Robinson, Id. 713; Thompson's Case, 8 Grat. 637; Philips' Case, 19 Grat. 485; McCarter's Case, 11 Leigh, 633. Even in the old Case of Thomas, 2 Va. Cas. 479, the doctrine that separation per se is fatal to the verdict is repelled, and, what is pointedly applicable to this case, it was held that "the bare possibility of tampering with the jury is not sufficient to set aside a verdict;" and Judge DADE said: "But we think we have shown that in this case there was a bare possibility of such consequence, and we do not think ourselves justified, on account of a remote possibil ity, to obstruct the justice of the country in a case where we cannot doubt that the prisoner has received no injury." So we may say in this case that the possibility of any communication of the juror with a soul is very remote, it being almost absolutely certain that he had not, and we are confident the defendant suffered no harm from the occurrence. The rule to be deduced from these cases is that...
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