Grady v. State
| Decision Date | 06 October 1930 |
| Docket Number | 28968 |
| Citation | 158 Miss. 134,130 So. 117 |
| Court | Mississippi Supreme Court |
| Parties | GRADY v. STATE |
1. CRIMINAL LAW. That justice who bound defendant over acted as bailiff did not warrant reversal, where no objections were made at trial.
Where a person is convicted of a felony, the court will not reverse the conviction merely because the justice of the peace, who heard the preliminary trial and bound the defendant over without bail in such preliminary hearing, acted as bailiff but did not testify in the case, where no objections were made to his attending the jury as bailiff at the time he was placed in charge thereof.
2. CRIMINAL LAW. On motion for new trial based on facts not known during trial, both defendant and attorney must make affidavit as to ignorance of facts.
On a motion for a new trial setting up facts alleged not to be known until after the trial as a reason for granting a new trial, both the defendant and his attorney, or attorneys must make affidavit that they did not know of the facts during, or before, the trial, and the affidavit of the defendant alone is insufficient to require the sustaining of a motion on such ground.
APPEAL from circuit court of George county, HON. W. A. WHITE, Judge.
James Grady was convicted of murder, and he appeals. Affirmed.
Judgment affirmed.
U. B. Parker, of Wiggins, for appellant.
Where the justice of the peace, who conducted the preliminary hearing and bound over without bail the defendant on a charge of murder and assisted sheriff in procuring testimony against such defendant, acted as bailiff for the jury who tried the defendant on the charge of murder, a conviction of such defendant should be set aside.
Tarkington v. State, 72 Miss. 731.
It would be unreasonable for the court to require an ignorant negro who was being held without bail in a strange county where he was not acquainted and where his attorney was not acquainted, and especially where his affidavit shows that neither he nor his attorney were acquainted with or knew the bailiff or knew that the bailiff was the justice of the peace who went with the sheriff to the scene of the difficulty about which he was being tried, wrote down the testimony of witnesses, returned and issued process and tried this defendant as conservator of the peace and bound him over to await the action of the grand jury without bail, as a condition precedent to obtaining new trial, to make any stronger affidavit than he did make.
Tarkington v. State, 72 Miss. 731.
The affidavit supporting the motion for a new trial was penned in the handwriting of the attorney for defendant in the lower court and the court below, and we believe this court needs no further proof of the verity of defendant's statement that his attorney was not acquainted with and did not know the bailiff.
Geo. T. Mitchell, Attorney-General, and Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
It is proper to deny a motion for a new trial, when it is not shown by affidavit that both the accused and his counsel were ignorant of the facts, alleged as grounds for the new trial, before the jury's verdict was returned.
Hams v. State, 61 Miss. 304; Brown v. State, 60 Miss. 447; Lipscomb v. State, 76 Miss. 224, 25 So. 158.
Where the record shows that the bailiff was not a witness in the case, either for the state or the appellant and there was no showing made by the appellant that the bailiff was present during the jury's deliberation or that he said one word to any member of the jury concerning the case or that he was alone with them at any time, except when he conducted them to their dinner.
A motion for a new trial alleging that the bailiff was the justice of the peace who conducted the preliminary hearing of the defendant and bound him over without bail, should be overruled.
The appellant, James Grady, was convicted of murder and sentenced to life imprisonment in the state penitentiary, from which conviction, he appeals.
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Odom v. State
...under oath that they were ignorant of such facts until after the trial. Hilbun v. State, 167 Miss. 725, 148 So. 365; Grady v. State, 158 Miss. 134, 130 So. 117; Salmon v. State, 151 Miss. 539, 118 So. Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; B......
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... ... stated the following proposition: "On a motion for a new ... trial based on facts not known during the trial, both the ... defendant and his attorneys must make affidavit, or testify ... under oath, that they were ignorant ... [188 So. 563] ... of such facts during the trial. Grady v. State, 158 ... Miss. 134, 130 So. 117; Salmon v. State, 151 Miss ... 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 ... So. 838; Lipscomb v. State, 76 Miss. 223, 25 So ... 158; Brown v. State, 60 Miss. 447; Harris v ... State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 ... ...
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