Anderson v. State, 40546

• Decision Date: 27 May 1957
• Docket Number: No. 40546,40546
• Citation: 231 Miss. 352,95 So.2d 465
• Parties: Ive ANDERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 465

95 So.2d 465

231 Miss. 352

Ive ANDERSON v. STATE of Mississippi.

No. 40546.

Supreme Court of Mississippi.

May 27, 1957.

Lee, Moore & Countiss, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by J. R. Griffin, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, Ive Anderson, was convicted in the Circuit Court of Scott County of grand larceny. The verdict was amply supported by the evidence. The jury was warranted in concluding that appellant aided and abetted the other man in the commission of the crime, participating in the criminal act in furtherance of the common design before and at the time the money was taken. Shedd v. State, Miss.1956, 87 So.2d 898.

Nor was the argument of the district attorney error. The evidence for the State justified a finding that appellant and the other man with whom he was working had begun the necessary preliminaries to-ward the old pigeon-dropping fraud upon Laura Johnson, but, when Laura dropped the purse containing her money, they decided that their more elaborate scheme was not necessary, took her purse, and ran away with it. The district attorney, in his argument to the jury, described this confidence-game technique and argued that appellant and his accomplice had begun to use that fraudulent scheme, apparently abandoning it when they saw they could get the money in another way. This argument was based upon the evidence and was proper.

Appellant in his motion for a new trial, which was overruled, complained that the court erred in allowing the jury to change or amend its verdict after returning the same to the court; that the jury was improperly separated after a return of the verdict; and that the sheriff improperly communicated with the jury after it had retired from the bar upon rendition of its verdict. The facts with reference to this point are set forth in the finding of the circuit judge: '* * * the Jury was brought before the Court in the presence of the Defendant, in open court, and the Court asked the Jury if they had agreed upon a verdict to which all jurors answered in the affirmative. He then instructed the Jury to hand the verdict to the Clerk to be read, and he directed the clerk to read the the verdict. The clerk read a verdict which read: 'We, the Jury, find the defendant guilty as charged.' Immediately thereafter one of the Jurors, I believe it was a Mr. Sessums, notified the Court that the verdict was wrong and he inserted the word 'not', whereupon the verdict then read: 'We, the Jury, find the defendant not guilty as charged.' All this was in the presence of the Court and the Defendant in open court. Before the Jury had retired from the presence of the Court, the Court was informed first by one member of the Jury that that verdict as changed was wrong, because the Jury had found the Defendant guilty. The Court thereupon immediately ordered the Jury back to their Jury room for further deliberations. All the time the foregoing was transpiring, the Defendant was present in the bar of this court, and the Jury had not been dismissed and they were present and still under supervision of the two bailiffs. After they had retired again to the jury room, they sent word to the Court they were ready to make a report. Whereupon the Jury was brought into open court and seated, and the Court asked the Jury if they had reached a verdict, and was informed by them that they had. Whereupon he instructed them to pass the verdict to the Clerk and directed the clerk to read the verdict, which he did read, and it was as follows: 'We, the Jury, find the Defendant guilty as charged.' The Court then secured the names of all the Jurors on this Jury and he asked each individual juror if that was his verdict and received an affirmative answer in response to the question. All of the jurors answered that the verdict of guilty was the verdict of the Jury. Thereupon the Defendant was sentenced to serve a term of five (5) years in the State Penitentiary.'

Both defendant and the State offered witnesses on the hearing of the motion for a new trial. W. S. Moore, one of defendant's counsel, testified that after Sessums had written in the verdict the word 'not', the circuit judge 'discharged the jury without using the word 'discharged' * * *.' However, the circuit judge expressly found that 'the jury had not been dismissed and that they were present and still under supervision of the two bailiffs', when he directed them to retire to the jury room and decide upon their verdict. Moore admitted that the defendant never left the bar. He could not say whether any of the jury actually walked into the hall out of the courtroom, but one of the jurors informed the judge that the jury had made a mistake, that in fact it had found defendant guilty. Thereupon the judge called the jurors back and directed them to retire to the jury room and decide upon their verdict.

Sheriff Bruce Rushing testified that the jury returned a verdict of 'guilty', and Sessums said it was wrong and inserted in it the word 'not'. The jury had not left the courtroom and was still in a group. They were coming to the door where the sheriff was standing, when he heard some of the jurors say that 'not guilty' was not their decision. So the sheriff relayed this opinion to the judge, who told them to come back. The sheriff said that during this period neither he nor anyone else had any conversation with the jury, and to his knowledge there was no influence or coercion brought to bear upon them; and that none of the jurors told him the verdict was wrong, but he overheard their conversation, in which some of the jurors complained that the verdict of 'not guilty' was wrong.

The...