Haley v. State

• Decision Date: 28 June 1920
• Docket Number: 21142
• Citation: 85 So. 129,123 Miss. 87
• Court: Mississippi Supreme Court
• Parties: HALEY v. STATE

85 So. 129

123 Miss. 87

HALEY v. STATE

No. 21142

Supreme Court of Mississippi

June 28, 1920

March 1920

1 HOMICIDE. Evidence as to provocation and its effect Held to justify charge on manslaughter.

APPEAL from circuit court of Yaobusha County, HON. E. D. DINKINS Judge.

O. K Haley, was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

O. K. Haley, H. H. Creemore and W. F. Hamilton, for appellant.

The separation of the jury, was in violation of the rights of the defendant and it is immaterial whether improper influence was exerted upon the jury or not. The testimony fails to exclude opportunity for communication with the juror, either through the physician who attended him or through some person not disclosed by the testimony who was in the ante-room or stairway when the juror unceremoniously left the jury box.

As in the case cited below the state made no effort to show any facts by any witnesses which would relieve the conduct of the juror of that suspicion which naturally attaches to it; and this at least the state was bound to do before the verdict should have been permitted to stand. It is not necessary that an attempt should be made to bias the minds of the jurors or that any pernicious influence should be exerted. The door to tampering is to be closed. This is the only security. If it be left open, it may be predicted with certainty that the evil consequences will fall somewhere. Hare v. State, 4 Howard, 187. It may be argued by the attorney general, as it has been argued in other cases, that if there was error in permitting the jury to separate, such error was cured and the defendant waived the benefit thereof by not making a motion to discharge the jury after the separation had occurred the second time and after the court stated that if such motion was made, it would be sustained.

To answer this view, we need only to quote from chief Justice Peyton: "We are of the opinion that the court has no power to authorize the separation of the jury during the trial of a capital case, either with or without the consent of the prisoner, except in cases of great necessity; and if it be done, and the prisoner be found guilty a new trial will be granted. The prisoner should not be asked to consent. Who dare refuse to consent when the accommodation of those in whose hands are the issues of his life or death is involved in the question? He would have to calculate the chances of irritation, from being annoyed by a refusal on the one hand, and of tampering on the other. No consent of the prisoner, in the extremity of his need, ought to bind him. He may not really be willing to permit the jury to separate, but may consent for fear that his refusal may prejudice the jury against him. Woods v. State, 43 Miss. 364.

2. The state's instruction defining and authorizing a verdict of manslaughter. "It is the general rule that insanity, when interposed as a defense in a criminal prosecution is either a complete defense or none at all, and it has been held that there is no degree of insanity sufficient to acquit of murder but not of manslaughter. 14 R. C. L. 599.

"There can be no recognition of the doctrine that a man is incapable of distinguishing between right and wrong so as to determine that the case is not a case of murder, and yet capable of distinguishing between right and wrong so as to be guilty of manslaughter. There is no such doctrine and nothing in the books that favors any such idea." United States v. Lee, 54 A. R. 294. (Supreme Court District of Columbia).

"From the very nature of the mental disease, there call be no grade of it by degree so as to accord with a degree in crime. To say that a man is insane to an extent which incapacitates him from fully forming an intent to take life, yet enables him to fully and maliciously form an intent to do great bodily harm without a purpose to take life is absurd, for the one involves the same test of responsibility as the other, ability to distinguish between right and wrong. Either the offense of defendant is wholly excused be cause the jury is satisfied by the preponderance of evidence of his irresponsibility or he is guilty, because the evidence fails to so satisfy them. Commonwealth v. Wireback, 70 A. S. R. 625 (Penn.)

We have discussed the question of insanity and its application to degrees of homicide and have quoted from the foregoing authorities to show (which perhaps is unnecessary) that the instruction on manslaughter cannot be justified on any theory growing out of the defense of insanity.

We understand of course that there are cases where one could take part of the state's testimony and believe that, and part of the defendant's testimony and believe that, and disbelieve part of the state's testimony and part of the defendant's testimony, and thus weave out from various fragments of the testimony from both sides a case of manslaughter. But this is not such case; there is no warp nor woof nor even a single thread for a manslaughter garment in this case.

Without citing many cases announcing this doctrine we content ourselves with the following: Virgil v. State, 33 Miss. 320; Johnson v. State, 78 Miss. 627, 29 So. 515; Hannah v. State, 87 Miss. 375, 39 So. 855; Parker v. State, 102 Miss. 113, 58 So. 879; Rester v. State, 110 Miss. 689, 70 So. 881.

It is well established that to reduce a homicide from murder to manslaughter it must appear not only that the killing was done in the heat of passion, but also that the provocation was sufficient to negative the inference of malice. Smith v. State, 58 Miss. 867.

Since the testimony showed that the defendant was neither guilty of murder or was not guilty of anything and as he has been acquitted of murder by the verdict of the jury and the finding of a verdict of manslaughter was not authorized by the testimony, and it was fatal error to submit the question of manslaughter to the jury, we respectfully submit that the judgment appealed from should be reversed and a judgment should be entered here finally discharging the appellant.

W. M. Hemingway, Assistant Attorney-General, for the state.

One of the jurors, named Scurr, was taken sick, and separated from the other jurors on several occasions, being attended by a physician three times, in the presence of a bailiff. This is urged as ground for a reversal. The controlling case in this state on that condition is Skate v. State, 64 Miss. 644. All of the preceding cases are noted and distinguished, among them being the case of Woods v. State, 45 Miss. 364, where the jury was permitted to disperse, and its members mingled with the public. And in the Skates case it is said of them all: "In all these cases the verdicts were set aside and new trials awarded." It will be noted in all of them it is neither shown that other persons had been brought in contact with the jury, or that there was a separation of the jury, under such circumstances as to accord a reasonable presumption that communication was had with others; there was in each case something more than a remote possibility that such communication was had, though in many of the cases, observations were made by the court indicating that any separation of one juror from his fellows would be sufficient to annul the verdict unless it was affirmatively shown that no communication was had with others. We find no fault with the results reached in either of the cases cited, but we do not concur in the language used in some of them, from which the conclusion is sought to be drawn, and reasonably, that the mere withdrawal of a juror from the sight of his fellows and of the officers is under any and all circumstances a separation of the jury.

Whether it is, or not, might as it seems to us, be dependent upon the circumstances of each particular case. . . . If the mere possibility of unlawful communication or influence is sufficient to annul a verdict, when shall one be said to be pure and free from suspicion. All our courthouses are public places, and the public have the right of access to them. At sessions of court many persons are there congregated either from curiosity or by reason of business for themselves or others. Jury rooms open into the courtroom, frequently filled with spectators; communication by writing, by signs and by words is always, possible, but it would be destructive to the ends of justice to hold that such possibility as this of unlawful influence should avoid verdicts upon which no just suspicion rests."

This opinion contends that the act of the juror must be sufficient to create a well-founded suspicion in the impartial judicial minds that unlawful influences have been exerted. The only opportunity this juror had to communicate with anyone was with the physician who attended him and the bailiff was present, and no improper communication was had. The Skates case is determinative of this case.

Our statute law contains no requirements as to the conduct of the juror. Section 2717, Code of 1906, section 2210 Hemingway's Code. So we must fall back upon the common law and reason as to when a juror has disqualified himself so as not to be able to render a fair and impartial verdict. In Green v. State, 59 Miss. 501, the court says: "It is not every act of misconduct on the part of jurors which will entitle defendant to a new trial, but where such acts are shown, if they are of such character as may have prejudiced the defendant, the presumption is that they did, and it devolves upon the state to establish that such results did not follow But where all the facts and circumstances are known, and it appears with reasonable certainty that though there was exposure to influences which might have perverted or corrupted the judgment of the juror, it was not done, then the verdict ought to...