Ervin v. State

• Decision Date: 04 December 1933
• Docket Number: 30740
• Court: Mississippi Supreme Court
• Parties: ERVIN v. STATE

151 So. 177

168 Miss. 145

ERVIN v. STATE

No. 30740

Supreme Court of Mississippi

December 4, 1933

Division A

1. CRIMINAL LAW.

Conflict in evidence raises question essentially for jury to settle. 168 Miss.---10.

2. CRIMINAL LAW.

Contention that there was separation of jury because some of jurors played bridge with bailiff near door of jury room in sight of other jurymen held without merit.

3. CRIMINAL LAW. Showing on motion for new trial on ground one of jurors had formerly been adjudicated lunatic held insufficient to require new trial (Code 1930, section 4583).

Although affidavits were filed by counsel setting forth that neither of them knew of juror being insane before, at time of, or during trial of cause, counsel subsequently stated in court that he did not claim to not have had knowledge of juror having had mental trouble, but that he did not know that he ever had a guardian, this being quite sufficient to show that counsel had adequate knowledge to put him on inquiry as to mental capacity or qualifications of juror at time he was being impaneled for trial of cause.

4. CRIMINAL LAW.

Adjudication of insanity as respects disqualification of juror was only prima facie and not conclusive, evidence.

HON WILLIAM ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county HON. WILLIAM ALCORN JR., Judge.

William Ervin was convicted of murder, and he appeals. Affirmed.

Affirmed.

John T. Smith, of Cleveland, for appellant.

It is of the utmost importance to the administration of justice, that the purity of the trial by jury should be preserved. And time and experience have shown the wisdom of the common law, which forbids the separation of a jury in the trial of a capital case before they have been discharged of the prisoner, and an adherence to which, modified as it has been in some of its harsh features, by modern practice, is best calculated to effect that end. Departures from the common law rule in capital cases, should be as few as possible, and only allowed in extreme cases, and never for the comfort or convenience of the jurors.

Robert Woods v. State, 43 Miss. 364.

One of the jurors, E. C. Clay, who composed the jury that rendered the verdict herein, was at the time of and during said trial, and for a long time prior thereto, non compos mentis and was under a guardianship, which fact as to his then condition was not known to appellant or his attorneys, and appellant, therefore, did not receive a fair and impartial trial by a competent jury.

The circuit judge had no power to inquire into the sanity vel non of the juror further than the orders and proceedings of the chancery court, for section 159 of our state constitution gives to the chancery court full jurisdiction over cases of idiocy, lunacy and persons of unsound mind.

Mabry v. Hoye, 87 So. 4.

We think the effect and the only effect that could be given to the matter now under consideration is that appellant was tried with only eleven jurors or eleven minds, an error which cannot be waived by the appellant even though he consent thereto. And if he could not actively consent, then how can he be said to have waived by negligence?

Ann. Cases 1914A, p. 872.

The juror not only concealed his mental infirmity, but positively and affirmatively deceived the court and the parties to the litigation, and perpetrated a legal fraud upon them.

The right of trial by jury shall remain inviolate.

Jones v. State, 27 So. 382; Byrd v. State, 1 How. 163; Carpenter v. State, 4 How. 163.

This constitutional provision cannot be waived.

16 R. C. L., pp. 219, 221 and 222.

"Twelve jurors" contemplates, of course, twelve minds.

State v. Rogers et al., 162 N.C. 656, 78 S.E. 293, Ann. Cases, 1914A, p. 867.

Neither will it do to say that appellant has shown no fraud, or that he has not shown that he did not receive a fair and impartial trial, for how could a crazy man be fair and impartial? This case is easily and clearly distinguishable from any case ever decided by this court under the above section of the constitution.

This constitutional provision must be interpreted to mean that it shall never be destroyed, annulled, nor so hampered or restricted by legislation as to make the provision a nullity.

City of Jackson v. Clark, 118 So. 350; Williams Yellow Pine Co. v. Henley, 125 So. 552.

It is an abridgment of the right of appellant to hold that he must be tried by only eleven minds instead of by twelve jurors.

Alexander McCarty v. State, 26 Miss. 299; Walker Guice and Bastil Guice v. State, 60 Miss. 714; Tolbert v. State, 14 So. 462.

An insane man may not vote.

20, C. J., p. 80.

And this was the common law and is the constitutional provisions of most states.

Section 241, Constitution of Mississippi.

Only qualified electors may be jurors.

Section 264, Constitution of Mississippi.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is settled law in this state that the mere fact of separation alone is not sufficient to reverse, where there has been no opportunity for a juror to converse with other people, and where, in fact, no communication with any other person is shown.

Queen v. State, 152 Miss. 723, 120 So. 838.

It has long been settled in this state that on motion for a new trial, based upon the disqualification of a juror, it must affirmatively appear, either by affidavit, or by sworn testimony, that such disqualification was unknown by both defendant and his counsel at the time such juror was accepted. If this showing is not made, then it is proper for the trial court to overrule a motion for a new trial.

Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Lipscomb v. State, 76 Miss. 224, 25 So. 158; Grady v. State, 158 Miss. 134, 130 So. 117; Queen v. State, 152 Miss. 723, 120 So. 838; Salmon v. State, 151 Miss. 539, 118 So. 610; Long v. State, 163 Miss. 535, 141 So. 591; Carter v. State, 145 So. 739; Hilbun v. State, 148 So. 365; 20 R. C. L., New Trial, p. 241; 16 R. C. L., Jury, 289, sec. 103.

It is a reasonable and uniform qualification of this rule that the cause of challenge must not have been known to the party, or his counsel, at the trial, because, if it is known, he ought to have availed himself of it, and a neglect to do it is his own folly or misfortune, unless he intended, as is the natural presumption from his silence, to waive altogether any objection.

New Hampshire Court, Rollins v. Ames, 9 Am. Dec. 79.

OPINION

McGowen, J.

On an indictment for murder in the killing of one Annie Ervin, the appellant, William Ervin, was tried, convicted by the jury, and by the judgment of the court was sentenced to life imprisonment, from which an appeal is here prosecuted.

According to the evidence offered for the state, the appellant shot and killed his mistress, or common-law wife, not in self-defense, and at a time when he was in no real or apparent danger of suffering any bodily harm at the hands of the deceased--a case of deliberate murder.

The evidence offered for the appellant was to the effect that there was a loaded shotgun in the room at the time he fired; that Annie Ervin was making an effort to get this gun; and that he fired in self-defense. He also testified to some threats that had been made against him by the main witness for the state, a sister of the deceased.

Annie Ervin had left the appellant and he was seeking a reconciliation and to have her return and resume their former relations.

1. We think it is unnecessary to discuss the facts, as the evidence offered for the state, and that offered for the appellant, created a conflict which raised a question essentially for the jury to settle, and we cannot disturb the verdict and judgment.

2. On a motion for a new trial, there was some contention that there was a separation of the jury due to the fact that some of the jurors played bridge with the bailiff in charge of the jury on a platform near the door of the jury room, in sight thereof,...