Cox v. State, 50808

• Decision Date: 13 December 1978
• Docket Number: No. 50808,50808
• Citation: 365 So.2d 627
• Parties: Louise COX v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 627

365 So.2d 627

Louise COX v. STATE of Mississippi.

No. 50808.

Supreme Court of Mississippi.

Dec. 13, 1978.

Farese, Farese & Farese, John B. Farese, Ashland, for appellant.

A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellant appeals from a conviction of murder and a life sentence by the Circuit Court of Tippah County. Three assignments of error were propounded, namely:

1. The trial court erred in failing to sequester the jury.

2. The trial court erred in not granting appellant's motion for a directed verdict at the conclusion of the evidence for the reason that the state did not meet its burden of proof.

3. The trial court erred in refusing to grant appellant's motion for a continuance.

The first assignment of error disposes of the appeal by requiring a reversal. The lower court erred in allowing the jury to disperse and go to their respective homes after adjournment of the court at the end of the first day of trial. As will be discussed later, we recognize the problem that the court had when that time arrived.

Prior to the start of the trial the lower court informed the jury that ". . . it will go into tomorrow, and I would like to ask a few additional questions on voir dire simply informing the jury that under the law, they will have to be sequestered, and probably will be two days, and if there's anyone who would be in such a . . . I would like to inquire of the jury, gentlemen, if the fact that they're going to be sequestered overnight would affect them, and I will inform them, of course, that it's the law that's requiring that and not either side in this law case.

He further informed the panel that "I will state to you that as a matter of law, those of you selected to serve on the jury will have to be kept together as a group insofar as possible throughout the day, and if the case should go into tomorrow, you would have to be kept together overnight."

Late in the afternoon of the first day of the trial, the defendant became ill and was carried to a local hospital. The court, in dispersing the jurors, stated: "I realize that there is case law requiring that a jury in this type of trial be sequestered; however, there are not sufficient rooms in the local motel. It would be most difficult, if not impossible, to arrange for transportation and sequestration of the jury, even in neighboring towns and cities, at this late hour."

Because of this situation, the court permitted the jury to disperse to their homes until nine o'clock the following morning. Appellant's counsel did not agree to the dispersal of the jurors. The following morning appellant's counsel advised the court that he had received a call during the night regarding one of the jurors. It suffices to say that the court fully and adequately inquired of the jury as to any attempted influence and there was no indication that this occurred.

Appellee contends that the sequestration of a jury in a murder case where the maximum penalty is life imprisonment is not mandatory subsequent to the statutes separating the penalty under charges of murder as distinguished from capital murder. This question was settled in the case of Wilburn v. State, 356 So.2d 1173 (Miss.1978), and the Court fully discussed the legislative intent in the passage in 1974 of Mississippi Code Annotated section 1-3-4 (Supp.1978). This section provides:

The term "capital case," "capital cases," "capital offense," "capital offenses," and "capital crime" when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term "capital murder" when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life in the state penitentiary.

We held in Wilburn that the Legislature by enacting Code section 1-3-4 "intended to retain these safeguards in all cases where the maximum sentence is life imprisonment." Although the Court, in Wilburn, was concerned with a statutory procedural safeguard, it is clear that the opinion intended to cover common law safeguards as heretofore announced by this Court. We said:

We are of the opinion the legislative intent was to draw a clear distinction between the present life imprisonment statute (previously permissive of either life imprisonment or death) and the death penalty statutes permitting only that punishment. We think the legislative purpose of the distinction was to eliminate the confusion that had arisen from "capital offenses" and similar terms existing in the statutes at the time of Furman (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346) and presently remaining therein. Its intention was to preserve the criminal procedures formerly associated with the trial of serious criminal offenses where the permitted punishment was either life imprisonment or death, but which presently permit as the maximum only life imprisonment.

In Weaver v. State, 272 So.2d 636 (Miss.1973), the Court said:

. . . Obviously, if this were a capital case, dispersal and separation of jurors would be reversible error even if permitted with the consent of the defendant.

The same pronouncement was made in Wilson v. State, 248 So.2d 802 (Miss.1971).

We reaffirm here the requirement that in a "capital case" where the crime charged is punishable by death or a maximum of imprisonment for life in the state penitentiary, the jury shall be sequestered during the entire trial and...