Garner v. State

• Decision Date: 27 March 1899
• Citation: 25 So. 363,76 Miss. 515
• Court: Mississippi Supreme Court
• Parties: THOMAS GARNER v. STATE OF MISSISSIPPI

25 So. 363

76 Miss. 515

THOMAS GARNER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 27, 1899

November 1898

FROM the circuit court of Pike county, HON. WILLIAM P. CASSEDY Judge.

The facts out of which the questions decided arose are stated in the opinion of the court.

Reversed and remanded.

Will A Parsons, for appellant.

Upon no principle of justice or law can the course of the judge in forcing the defendant to go to trial for his life before a juror biased and prejudiced on account of relationship to the person whom the defendant was charged with murdering, forcing him to place the issue of his life or death in the hands of such a jury, be justified. Such a course, such a ruling, is shocking to all proper ideas of justice and right. These rulings seem to have been made on the idea that swearing the jury was the thing behind which the court could not go. This court has repeatedly held otherwise, and in the case of Jefferson v. State, 52 Miss. 767, the jury had been impaneled and sworn and the indictment was being read, when one of the jurors arose and stated that he recollected that he was a member of the grand jury who found the bill. The court directed him to stand aside and substituted another in his place, and this court sustained the action of the lower court. McGuire's case, 37 Miss. 369; Smith's case, 55 Miss. 519, and Lewis' case, 9 Smed. & M., 115.

Witness, Farnham, was allowed to testify that he first heard of the killing on Mr. Garner's gallery at a little after eleven o'clock on the day of the killing. That Mrs. Garner and Miss Garner were present at the time, and no one else was present. That when he got up to the house he found Mrs. Garner and Miss Garner crying on the gallery. All of this evidence was objected to by the defendant, objection overruled and exception reserved. What difference could it make legally where Henry Farnham was when he first heard of the killing? What difference could it make legally who was present when he first heard of it? What difference could it make legally that Mrs. Garner and Miss Garner, the defendant's wife and daughter, were the only ones present when Henry Farnham heard of the murder of Mr. and Mrs. Causey? What possible legal difference could it make in this case whether or not Mrs. Garner and Miss Garner were crying when Henry Farnham came up to the Garner house on that Sunday? All of this evidence was unquestionably incompetent, irrelevant and inadmissible, and yet I feel as sure as I do of anything that it was upon this testimony that the jury founded their verdict, and I do not believe, without it, they ever would have brought in that verdict.

Mixon & Lotterhos, on same side.

The court below permitted the state, over appellant's objection, to show by Farnham that he first heard of the killing at Mr. Garner's shortly thereafter, at a time when no person was present but himself and Mrs. and Miss Garner, and that he found Mrs. and Miss Garner there crying. Surely the issue in this cause was not whether or not Mrs. Garner had said that her husband had done the murder. Appellant was not prepared to meet every issue that might be raised upon what she had said or done. The extremely damaging effect of the testimony is patent, after its admission to the salient features of the alibi are thrown into obscurity, to the average juror. The sufficiency of this error, to require a reversal herein, we respectfully submit, is clearly established by the exhaustive and lucid opinion of this court, delivered in the case of Williams v. State, 73 Miss. 820. The only difference between the Williams case and the case at bar is that in the case at bar the effect of the error is more damaging to the defendant, and a part of the contradiction was arrived at indirectly.

"A peremptory challenge interposed after the administration of the oath to the jury comes too late." 12 Enc. Plead. & Prac., 495, and the authorities cited in note 1. The allowance of a challenge after the juror has been sworn is not a strict matter of right, but in the discretion of the court, and for good cause shown such a challenge may be allowed either after or before the completion of the panel. 12 Enc. Plead. & Prac, 496, and notes 3 and 4 on said page and the next page.

In this trial for his life Garner should have had a jury composed of those not of kin to the deceased. Appellant submits that he should have a new trial because of this failure to get a jury such as contemplated by law. He Surely showed the "good cause" mentioned by the authorities.

Wiley N. Nash, attorney-general, for the state.

The appellant was indicted for the murder of Maggie Causey; was tried and convicted. The proof shows that at the time Mrs. Causey was killed, her husband was also killed, doubtless killed by the same party who murdered her.

As to the motion in regard to the juror, Boyd, it will be remembered that when these motions were made the entire jury had been selected, impaneled and sworn. Again, the juror, under the facts, was no kin. It cannot be claimed that appellant had a right to challenge Boyd, under the circumstances.

When a verdict in a case is manifestly correct the court will not disturb it. A new trial will not be granted upon the facts and circumstances of this case.

Argued orally by Will. A. Parsons and F. H. Lotterhos, for appellant, and by Wiley N. Nash, attorney-general, for appellee.

OPINION

WOODS, C. J.

Upon the impaneling of the jury, one Boyd was examined upon his voir dire touching his qualifications as a juror and swore that he was not related by marriage or otherwise to the deceased or to the accused, and thereupon the said Boyd was accepted as a juror by the state and the defendant. After the panel had been completed and the jury specially sworn, and before any other step had been taken in the cause, the fact was ascertained by the defendant that a son of the said Boyd had married a niece of Scott...