Dennis v. State

• Decision Date: 18 November 1907
• Court: Mississippi Supreme Court
• Parties: LOUIS DENNIS v. STATE OF MISSISSIPPI

44 So. 825

91 Miss. 221

LOUIS DENNIS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 18, 1907

October 1907

FROM the circuit court of, second district, Hinds county, HON DAVID M. MILLER, Judge.

Dennis appellant, was indicted and tried for the murder of John T White, convicted, sentenced to suffer death and appealed to the supreme court.

After the jury found appellant guilty as charged, he made a motion for a new trial, assigning as a ground therefor, that one of the jury, Calebro, was biased against him, the motion touching this point reading as follows:

"(7) One of the jurors, V. C. Calebro, who tried the case, was incompetent as a juror, and was prejudiced against defendant and had prejudged his case, and had formed and expressed an opinion of the guilt of the defendant before he was accepted as a juror in this case; and in the town of Raymond, before he was accepted on the jury, gave expression to his opinion and prejudice in the following words: 'John White was the best friend I ever had; Louis Dennis, God damn him, ought to be lynched and hung now, and I would help hang him.' Yet this juror, when examined on his voir dire, then and there disclaimed having formed or expressed an opinion, and misled the defendant by saying and declaring on his said examination, that he had no prejudice against the defendant. Moreover, the said Calebro also gave utterance to his prejudice against defendant, before he was accepted on the jury, in that he stated, out in the country near Murphy's store, that 'Louis Dennis ought to be hanged, and that he, himself, was willing to put the rope around Dennis' neck.'

"The prejudice and bias of said juror were unknown to the defendant or his attorneys, and defendant was entrapped into accepting the said disqualified juror, to defendant's great prejudice."

The trial court overruled the motion. The opinion of the court further states the facts.

Reversed and remanded.

Williamson, Wells & Peyton, for appellant.

After conviction, the defendant made a motion for a new trial and assigned among other grounds the fact that Calebro, one of the jurors, who tried the case, had prejudged it unfavorably to defendant, but on his voir dire had stated that he had no bias or prejudice against defendant, who at that time was ignorant of the fact that the juror had so prejudged the case. This motion was supported by the affidavit of defendant and each of his counsel. Testimony was taken at length upon the motion and it was proved by seven witnesses that the juror, Calebro, had prejudged the case as stated and that he had upon his voir dire misled the defendant and induced him by his favorable answers to accept him.

It is said by CAMPBELL, J., in the case of Cannon v. State, 57 Miss. 156: "It is well settled that this is good reason for a new trial. We are aware of the vulnerability of verdicts on this ground, and of the danger to which it exposes them, especially at this time"; but the court, in the case cited, reversed the judgment upon this ground alone and it is stated in the opinion that but for this single error it would have been affirmed.

In the case of Brown v. State, 57 Miss. 424, it is stated that "the rule requiring impartiality in jurors has been enforced with great strictness in this state," citing State v. Flower, Walker (Miss.), 318; State v. Johnson, Walker (Miss.), 392; Cody v. State, 3 How. (Miss.), 27; Nae v. State, 4 How. (Miss.), 330; King v. State, 5 How. (Miss.), 730; Lewis v. State, 9 Smed. & M. (Miss.), 115; Nelms v. State, 13 Smed. & M. (Miss.), 500; Sam v. State, 31 Miss. 480; Williams v. State, 32 Miss. 602; Alfred v. State, 37 Miss. 296; Williams v. State, 37 Miss. 407; George v. State, 39 Miss. 570; Josephine v. State, 39 Miss. 613.

It is the intention of the law that a juror shall come to the consideration of the case unaffected by any previous judgment, opinion or bias, either as respects the parties or subject matter of the controversy. This cannot be, if a juror has a fixed and settled opinion on the subject matter in controversy.

Much more is the rule to be invoked in a case like this, where the defendant has exhausted all the challenges allowed him by law and where he is placed at the mercy of the juror who has answered falsely on his voir dire. In the Brown case, supra, the court held that in order to avail of the incompetency of a juror it was not necessary that all peremptory challenges should have been used. In the instant case all peremptory challenges were exhausted by defendant before the jury was fully empaneled.

In the case of Fugate v. State, 82 Miss. 189, it is said: "As said by this court speaking through Justice STOCKDALE in Jeffries v. State, 74. Miss. 677, it would be placing too low an estimate upon the law-making power to say that it intended to remove or infringe upon the safeguards of the lives and liberties of the people to authorize the trial of one charged with crime by a partial or prejudiced jury."

The case of Jeffries v. State, 74 Miss. 677, is peculiarly applicable to this case at bar. In that case it is said: "All along the history of our jurisprudence are strong and eloquent admonitions by the great jurists of the state to the courts, to preserve the juries of the country spotless and pure to the utmost possibility. A superb public sentiment rigidly imposes that duty on all the courts. There is no power invested with the right to take away the life or liberty of a citizen. The law prescribes certain rules of action and declares that their violation shall work the forfeiture of the life or liberty of the violator, and the only function of the courts in that behalf is to ascertain, by the strict application of the rule of law, whether the accused has, by his own act, forfeited his own life or his liberty, and to execute the impartial finding. It is not worth while to repeat again the oft repeated ruling of this court that a verdict of a jury embracing one disqualified member, cannot be allowed to stand in a case of this sort."

The case of Shepprie v. State, 79 Miss. 740, is also to the same effect.

W. J. Croon, on the same side.

The testimony, on the motion for a new trial, showed that the juror, Calebro, had not only prejudged this case before the trial, but also that he had the most bitter feeling toward appellant. He had, in a conversation with the father-in-law of the deceased, stated, "I will do the best I can for the dead man." After the death of the deceased, and prior to the trial, Calebro expressed to different persons his past intimate friendship for the deceased, and his intense prejudice against appellant. By the testimony of many reputable citizens of the county, he is shown to have stated shortly after the homicide that the appellant had killed his best friend, and that appellant should be mobbed or hanged, and that if he should get upon the jury he would hang him, and would put a rope around his neck. Yet this juror, on his voir dire, falsely stated that he would render a true verdict. Both appellant and his counsel were ignorant that Calebro was prejudiced against appellant in any way, and relied upon the false answer of Calebro on his voir dire, that he had no desire to arrive at any other verdict than such verdict as should rightfully result under the law and evidence.

This juror was clearly incompetent, and his incompetency so tainted the verdict against appellant, that it should have been set aside, on the proof shown, on appellant's motion for a new trial. Cannon v. State, 57 Miss. 147; Cody v. State, 3 How. (Miss.), 27; Sam v. State, 31 Miss. 480; Frank v. State, 39 Miss. 705.

Geo. Butler, assistant attorney-general, for appellee.

Did the facts, shown on the motion for a new trial, demonstrate that the juror, Calebro, had prejudged the appellant's cause, and did he become thereby incompetent? It is impossible to lay down any definite and fixed rules for the guidance of the courts as to what will and will not disqualify a juror, as to whose competency the sole question is, whether he had prejudged his case, when on his voir dire he distinctly states that he is able to render a true verdict according to the law and evidence.

In the case of Cannon v. State, 57 Miss. 144, this court said, "If the court below had disbelieved the evidence of the charge that the juror had prejudged the cause, we should concur and affirm the judgment on this point; but instead of that, the bill of exceptions shows that the circuit judge expressly stated that he assumed as true that the juror had expressed an opinion of the case unfavorable to the accused."

In the case at bar, Calebro emphatically denied, on the motion for a new trial, that he had ever expressed any opinion, or that he had made the remarks charged, concerning the appellant. And it will be noted that at least two of the witnesses, introduced by appellant on the motion for a new trial, were unworthy of belief, inasmuch as their reputation for veracity was shown, by state's witnesses, to be bad in the community in which they lived.

In the cases of Cannon v. State, 57 Miss. 144; Jeffries v. State, 74 Miss. 675; Shepprie v. State, 79 Miss. 740, the statements made by different jurors were shown to have been believed by the court, were admitted to be true or uncontradicted, and the juror, in each of the three cases cited, had talked with an eyewitness, whose influence was most evident upon him. In the case now before the court Calebro had talked to no witness, knew nothing of the facts had no opinion, and there is a sharp conflict in the...