Brister v. State
| Decision Date | 26 June 1905 |
| Citation | 38 So. 678,86 Miss. 461 |
| Court | Mississippi Supreme Court |
| Parties | POLLY BRISTER v. STATE OF MISSISSIPPI |
FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.
Polly Brister, the appellant, was indicted, tried, and convicted of violating Code 1892, § 1126, permitting gambling in her dwelling house, and appealed to the supreme court.
The indictment, omitting formal parts, was as follows "Polly Brister, in said county, on the 25th day of August, 1902, being then and there the lessee and occupant of a certain dwelling house located in the town of Summit Mississippi, and occupied by her as a dwelling, did then and there, unlawfully, knowingly, and feloniously, permit and suffer games of chance to be played and carried on with dice for money, contrary to the, form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi." Defendant's demurrer to this indictment was overruled. A motion for a new trial was made by defendant, and on the hearing a juror who had tried the case was introduced, who testified that the annotated code of Mississippi, 1892, and the amendments thereto, were found by the jury on a table in the room, and one of the jurors got these statutes and read them to his associates, expounded the law as there written and argued the case to them, and that a verdict of guilty would not have been reached had he not done so. The motion was overruled.
Affirmed.
L. H. McGehee, for appellant.
The demurrer to the indictment was good and should have been sustained. It is very evident that the indictment charges a felony, when the crime attempted to be charged is a misdemeanor.
The reading of law books to a jury after instructions have been asked and given by the court is expressly prohibited. United States v. Watkins (Fed. Case No. 16649), 3 Cranch, 441; Yarborough v. State, 105 Ala. 43 (s.c., 16 So. 718); State v. Fitzgerald, 130 Mo. 407 (s.c., 32 S.W. 1113).
It is prima facie fatal for the jury to secure and read law books with reference to the particular crime under investigation after instructions have been given them by the court and after they have retired for deliberation.
The jury should always, during the consideration of a case, be kept free from any outward or improper influence. Tarkington v. State, 72 Miss. 731; Cartwright v. State, 71 Miss. 82; Johnson v. State, 27 Fla. 245; Newkirk v. State, 27 Ind. 196.
William Williams, attorney-general, for appellee.
Counsel complains because the jury had the code and the acts of the legislature in their possession while they were considering the verdict. Counsel did not read law books to the jury. It is admitted that the jury should not have had books in their possession, but neither the court nor counsel is to blame for books having been left in the jury room. The fact that the jury did have and read the code and the acts of the legislature is not a sufficient ground to warrant a reversal of this case.
The action of the court in overruling the demurrer to the indictment was correct. The use of the adverb "feloniously" in charging a misdemeanor does not vitiate the...
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