Carter v. State

• Decision Date: 21 January 1901
• Citation: 78 Miss. 348,29 So. 148
• Court: Mississippi Supreme Court
• Parties: GEORGE CARTER v. STATE OF MISSISSIPPI

29 So. 148

78 Miss. 348

GEORGE CARTER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 21, 1901

FROM the circuit court of Sunflower county. HON. FRANK E. LARKIN Judge.

Carter the appellant, was indicted for grand larceny, tried and convicted in the court below, and sentenced to the penitentiary. From the conviction and sentence he appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Johnson & Chapman, for appellant.

During the progress of the trial in this case, the jury were allowed to leave the court room, cross a public street, and go to a water closet about one hundred yards from the courthouse, not being accompanied by any sworn officer or bailiff. This is fully established by the testimony of R. P. Miller, taken on the motion for a new trial. The rigors of the common law as to the keeping of a jury during a trial and while they are considering their verdict, has been mollified, but in this state, up to the present time, our courts have rigidly adhered to the doctrine that in the trial of felony cases the jury should be kept together and in charge of a sworn bailiff. Whenever the jury are allowed to separate or get away from the sight and hearing of the bailiff in their charge, the law itself raises a presumption against their verdict. There is a presumption that they have been talked to and tampered with, and the burden of proof is upon the state to clearly establish that this has not been done, and unless the state meets this burden, the verdict should be set aside. Durr v. State, 53 Miss. 426; Green v State, 59 Miss. 504; Organ v. State, 26 Miss. 78; Have v. State, 4 How. (Miss.), 187; Boles v. State, 13 Smed. & M., 398.

Monroe McClurg, attorney-general, for the appellee.

The proposition that in all felony cases the jury should be kept together, is not controverted. Nevertheless, it must be conceded that the facts in this case do not justify the legal presumption insisted upon by appellant, that the jury was both beyond the control of the court and out of the presence and supervision of the bailiff. The testimony of Miller is not strong enough to leave the case entirely upon the legal presumption. A counter presumption is that the court and its officers complied with the law, and the latter presumption is not overcome by the testimony of an outsider that there was nobody, that he knew of, in charge of the jury. There is scarcely enough in the record to show even an opportunity to tamper with the jury or any member of it. It is quite improbable that any injury could have been done to the appellant. Green v. State, 59 Miss. 501; Russell v. State, 53 Miss. 367.

OPINION

TERRAL, J.

George Carter was tried and convicted in the circuit court of Sunflower county of grand larceny, and was sentenced to the penitentiary for three years. He excepted to several rulings of the court in the admission of testimony and in giving of instructions, but we find no error committed in that behalf. He also moved for a new trial, which was refused. One ground of the motion was that the jury had, during the trial, gone from the court room and into and across the public street to a house or office there situate, and during that time they were not under the supervision of any officer. Upon the hearing of the motion R. P. Miller testified that he was deputy sheriff, and was in the court room when the...