Berbette v. State

Decision Date22 March 1915
Citation109 Miss. 94,67 So. 853
CourtMississippi Supreme Court
PartiesBERBETTE v. STATE

March 1915

APPEAL from the circuit court of Hinds county. HON. J. A. TEAT Special Judge.

M Berbette was convicted of larceny and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. J Croom, for appellant.

I want to call the attention of the court to a ruling of the lower court by which an employee of the Jackson Light & Traction Company, over the objection of the appellant, by challenge for cause, was permitted by the court to sit on the jury that tried this cause. A man by the name of McBride, an employee of said company, was on the panel and tendered by the state to the defendant, and it being shown that he was an employee, of the Jackson Light & Traction Company, the party from whom this appellant was charged with having stolen the electric current, appellant challenged him for cause and the court overruled said challenge, and he was forced on the panel, over the objection of appellant, to which the appellant excepted then and there in open court. I say, that this is a fatal error, and has been condemned by this court in a civil case, in which this court held that an employee of a litigant in a civil case was not a competent juror, and on challenge for cause, he should be set aside by the presiding court, and the reasons given by the court why an employee is an incompetent juror in a civil case, apply with stronger force, in this case, when the employee is of a corporation, prosecuting a man, charging him with larceny. I respectfully refer the court to these cases, which are W. J. Hubbard et al. v. William Rutledge, reported in 57 Miss. 7, in which the following is stated: "In empannelling the jury, L. Berry stated on his voir dire, that he was then, and had been for some time, in the employ of the defendant as clerk; that he had carried a letter in regard to this suit, from the defendant to his counsel, and had frequently heard the case talked about, but had formed no opinion, and could impartially try it. The plaintiffs objected to the juror, and on the overruling of their objection, excepted. They then challenged Berry peremptorily, and afterwards exhausted their peremptory challenges, before the completion of the panel."

This court speaking through Judge CAMPBELL, says this: "The juror Berry, was not above all exceptions, as a juror, and should have been rejected by the court. He was in the service of the defendant as a clerk, and that made him incompetent. It is true he was peremptorily challenged by the plaintiffs, but this required one of their peremptory challenges, which were exhausted, as the record shows, before the panel was completed. Citing 3 Blackstone's Commentaries, 363, and 2 Graham & Waterman on new trials, 245 et seq." And this case was reversed on two grounds, one of which being the action of the court in overruling the challenge for cause to the juror Berry, and holding him competent, as a juror, which was the main ground of reversal. And the court will notice that he was held to be incompetent as a juror, because he was in the service of the defendant, as a clerk.

And in the case of L. N. O. & T. R. R. Co. v. Mask, reported in 64 Miss. page 738; this court, speaking through Judge ARNOLD, says as follows: "The juror, Hartgroves, being in the employment of appellant, was subject to challenge, for that cause. He was not omni exceptione major. He would have been disqualified at common law, and we have no statute, removing said disqualification. It does not matter that he had the self confidence to swear that he could try the cause impartially. It was not for him to determine his competency on that point. When the fact was developed that he was in the employment of appellant, the law adjudged him incompetent. The law does not lead jurors into the temptation of a position where they may secure advantage to themselves by doing wrong, nor permit the possibility of the wavering balance being shaken by self interest."

This case cites the Hubbard v. Rutledge case, and also, 3 Blackstones Commentaries, 363, and also, Thompson and Merriam, on juries, section 185, and I say, that these authorities, and the reasons upon which they are based, show conclusively that the action of the lower court, in holding the juror McBride, competent, and forcing appellant to exhaust his peremptory challenges, was reversible error. The only difference in the case at bar, and the authorities cited, is that they were civil cases, and this is a criminal case, in which the state of Mississippi is nominal plaintiff, but this court knows that the real party in interest prosecuting this case, was the Jackson Light & Traction Company, the employer of the juror, McBride, and the language of Judge ARNOLD in the Mask case wherein he says: "The law does not lead jurors into the temptation of a position where they may secure advantage to themselves by doing wrong nor permit the possibility of the wavering balance being shaken by self interest," applies with all of its force of reason to this case. McBride was an employee of the prosecutor, and we have a right to conclude that his living and position depended upon the prosecutor, and can we say that under these circumstances, his action on this case, as a juror, would be uninfluenced by his relationship to the prosecutor, the Jackson Light & Traction Company?

Ross A. Collins, Attorney-General for the state.

Of appellant's many assignments of error the one involving more serious consideration is the first, which relates to the alleged error in permitting the juror, McBride, after challenge for cause, to remain on the jury. It was shown on the voir dire that this juror was employed as a motorman on the street cars owned and operated by the Jackson Light &amp Traction Company. In civil cases this court has held, as in cases cited by appellant, that an employee is subject to challenge for cause simply by virtue of the relationship, but in criminal cases, where the state is plaintiff, it should not be held to be error per se in permitting such juror to serve on the jury after he takes the prescribed oath of a juror, and the mere fact that he is employed by the corporation would not of itself warrant the conclusion that the defendant has been denied a trial by a fair and impartial jury, I submit that the survey of the record shows that no material harm was...

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10 cases
  • Goldsby v. State
    • United States
    • Mississippi Supreme Court
    • October 3, 1960
    ...in point. Hubbard v. Rutledge, 1879, 57 Miss. 7; Louisville, N. O. & T. R. Co. v. Mask, 1887, 64 Miss. 738, 2 So. 360. Berbette v. State, 1915, 109 Miss. 94, 67 So. 853, and Jackson v. Board of Mayor and Aldermen of Town of Port Gibson, 1927, 146 Miss. [240 Miss. 668] 696, 111 So. 828, also......
  • Murphy v. Cole
    • United States
    • Missouri Supreme Court
    • December 18, 1935
    ... ... Mo.App. 392. (7) Statutory enumeration of grounds for ... challenge does not preclude a challenge for cause upon other ... grounds. State v. Miller, 156 Mo. 76; State v ... West, 69 Mo. 401; Coppersmith v. Railroad Co., ... 51 Mo.App. 357. (8) The duty of the court to set aside ... of such disqualified persons." ...          Among ... other cases holding likewise are the following: Berbette ... v. State, 109 Miss. 94, 98, 67 So. 853; Featherstone ... v. Cotton Mills, 159 N.C. 429, 431, 74 S.E. 918; ... Georgia Railroad & Banking ... ...
  • Wilbe Lumber Co. v. Calhoun
    • United States
    • Mississippi Supreme Court
    • March 28, 1932
    ... ... Hubbard ... v. Rutledge, 57 Miss. 7; Railroad Co. v. Mask, 64 ... Miss. 738, 2 So. 360; Burbette v. State, 109 Miss ... 94, 67 So. 853; Jackson v. Board of Mayor and Aldermen of the ... Town of Port Gibson, 111 So. 828 ... Appellant ... was ... ...
  • Jackson v. Board of Mayor and Aldermen of Town of Port Gibson
    • United States
    • Mississippi Supreme Court
    • March 21, 1927
    ... ... creates such implied bias or prejudice as will disqualify a ... juror. Davis v. Sarcy, 79 Miss. 292, 30 So. 823; ... Garner v. State, 76 Miss. 515, 25 So. 363 ... Of ... course, neither the juror nor his father would have to pay ... the judgment rendered by the jury ... interested and, therefore, disqualified that it was useless ... to argue it further. See Berbette v. State, 67 So ... 853; Hubbard v. Rutledge, 57 Miss. 7; R. R. Co ... v. Mask, 64 Miss. 738, 2 So. 360; City of Birmingham v ... Gordon, 167 ... ...
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