Green v. State

• Decision Date: 14 November 1910
• Docket Number: 14,675
• Court: Mississippi Supreme Court
• Parties: THORNTON GREEN v. STATE OF MISSISSIPPI

53 So. 415

97 Miss. 834

THORNTON GREEN v. STATE OF MISSISSIPPI

No. 14,675

Supreme Court of Mississippi

November 14, 1910

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

Green appellant, was indicted and tried for the murder of Mary Green, was convicted, sentenced to be hanged and appealed to the supreme court. ANDERSON, J., stated the facts thus:

The appellant was tried before a jury composed of eight of the regular venire for the week and four talesmen. While the jury was being made up, anticipating that the regular venire would be exhausted, the judge left the bench, and went into the sheriff's office, and instructed Deputy Sheriff Ryan to summon young men for talesmen, and stated to him: "We want to break this nigger's neck." The deputy summoned five talesmen, all of them young men, except one who was between fifty and sixty years of age. Thereupon appellant's attorney made a motion to discharge them, on the ground of the instructions given the deputy by the judge, above set out. On this motion the testimony of several witnesses was taken, during the taking of which and the hearing of the motion one of the talesmen, Lawrence, was present and heard the proceedings. The judge admitted in Lawrence's presence that he had instructed the deputy to summon young men who would break the negro's neck, but stated that he was joking, and he did not mean it. Lawrence's testimony to this effect was given on the motion for a new trial without objection on the part of the state. On cross-examination he stated, over the objection of appellant, that he was not influenced in his verdict by what he heard. Appellant had exhausted his peremptory challenges before reaching the juror, Lawrence, who was one of the jury convicting him.

Reversed and remanded.

E. R. Ratcliff, Jr., Dorsey & Allen and Charles F. Engle, for appellant.

In Allen v. State, 100 Iowa 7, the following language is used: "It must be remembered that jurors watch courts closely and place great reliance on what the trial judge says and does. They are quick to perceive the leaning of the court and from his conduct, whether properly or not they will almost invariably arrive at a conclusion as to what the court thinks about a case. Every remark dropped by the court, every act done by him during the trial of a case is the subject of comment and conclusion by the jurymen. Hence it is that judges presiding at trials should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean towards or lend their influence toward one side or another." See Lamar v. State, 64 Miss. 687; Wheeler v. Wallace, 53 Mich. 355; State v Washington, 30 La. Ann. 49; Parks v. State, 59 Ga. 879; Kane v. Kinnare, 69 Ill.App. 81. In Shakman v. Potter, 98 Iowa 66, it was held that where a judge during the progress of a trial made remarks that would be erroneous and prejudicial if embodied in his formal charge, a losing party will be entitled to have a verdict to which they might have contributed set aside. In 21 Enc. P. & P. 994, it is said: "Judgments are often reversed merely because of unfavorable comments of the trial judge, the court taking the view that it is impossible to determine to what extent the rights of a party may have been prejudiced by the remarks of the court"

The judge presiding at a jury trial, in his remarks and conduct of the case, should endeavor to maintain a strict impartiality. It is error for him to express directly or indirectly an opinion which points to the guilt of the accused. 12 Cyc. 538; People v. Daily, 135 Cal. 104; Cunningham v. People, 195 Ill. 550; Fisher v. People, 23 Ill. 283; Scruggs v. State, 90 Tenn. 81; Hawkins v. United States, 116 F. 569; People v. Moyer, 77 Mich. 571; People v. Leach, 146 N.Y. 392.

James R. McDowell, assistant attorney-general, for appellee.

This court has held in the Schrader case, 84 Miss. 593, and in the Green case, 72 Miss. 522, that in the face of a positively sworn declaration of a juror on his voir dire that he would give the defendant a fair trial, although he had heard the case discussed and had some opinion, his verdict would not be set aside. The case here presented is no stronger than those cases.

It is true that where there was opportunity for an improper influence to have been brought to bear, the presumption is against the purity of the verdict, but the verdict will not be set aside because of this...