Fulcher v. State

• Decision Date: 02 November 1903
• Citation: 82 Miss. 630,35 So. 170
• Court: Mississippi Supreme Court
• Parties: THOMAS J. FULCHER v. STATE OF MISSISSIPPI

35 So. 170

82 Miss. 630

THOMAS J. FULCHER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 2, 1903

FROM the circuit court of Yazoo county. HON. ROBERT POWELL, Judge.

Fulcher appellant, was indicted and tried for the murder of one McNeal; he was convicted of manslaughter and appealed to the supreme court.

The evidence for the state was substantially as follows Appellant and deceased were neighbors, their fields lying adjacent, and separated by a wire fence. McNeal was a small man, and about seventy years old, and Fulcher was forty-five years old, and weighed one hundred and fifty pounds. Appellant and deceased had been on good terms up to the day the fatal blow was struck. On that day Fulcher quit work about five o'clock in the afternoon, put his hoe on his shoulder, went over the cross fence to where deceased was hoeing a few feet from the fence, in his own field, told him he must keep his chickens out of appellant's field, and deceased replied that he could not do so. Fulcher then became angry, and hit deceased in the face with his fist, and then struck him on the head with a hoe, and at this time deceased was not making any attempt to strike Fulcher with his hoe but had left it some distance away. The evidence for the defense was to the effect that deceased's stepson had circulated scandalous reports about defendant's daughter that defendant had seen deceased about this, and deceased had promised to correct the boy, and at the time of the difficulty Fulcher was on his way from one part of his field to another, his path leading near where deceased was working and, as he approached, deceased beckoned him to come by, and said to him, "That report you talked about my boy is a lie;" that some angry words then passed, and deceased raised his hoe to strike defendant, when defendant struck deceased with the hoe he had on his shoulder. Deceased lived a little over a week, and died from the effects of the wound. Defendant, on the trial, asked the following instruction (No. 7): "The court instructs the jury that they must acquit the defendant if they believe there is a reasonable doubt whether at the time McNeal was struck by the defendant that he (McNeal) was attempting to strike Fulcher with a hoe." The court added to this instruction the following, "if you believe the hoe was a deadly weapon in the hands of McNeal, and it was really or apparently necessary for the defendant to strike to protect himself," and gave it as thus modified.

Affirmed.

E. R. Holmes, for appellant.

The jury that tried and convicted the appellant had as a member thereof one A. Narrowitz, who was not a citizen of the United States. This defect is fatal to the verdict, as it did not give the appellant such a trial by jury as is guaranteed to him by the constitution of the United States and of the state of Mississippi. Section 31 of the constitution of the state of Mississippi provides: "The right of trial by jury shall remain inviolate." This has been construed by our court to mean a jury composed of twelve men, and to be such a jury as was provided for at common law. Wolfe v. Martin, 1 How. (Miss.), 30; Byrd v. State, 1 How. (Miss.), 163; Isom v. R. R. Co., 36 Miss. 300.

It will be seen that Narrowitz was a tales juror, that he was not on the special venire or the regular panel and, therefore, the appellant cannot be held to have waived the objection, as in the case of George v. State, 39 Miss. 570, for in that case the juror Waller was on the special venire.

In this case Narrowitz was not only a tales juror, but swore on his voit dire that he was a qualified elector of the county, etc. This, of course, disarmed the defendant and his attorneys of any suspicions which they might have entertained as to the disqualifications of the...