Helm v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WOODS, C. J.
• Citation: Helm v. State, 67 Miss. 562, 7 So. 487 (Miss. 1890)
• Decision Date: 28 April 1890
• Parties: W. W. HELM v. THE STATE

7 So. 487

67 Miss. 562

W. W. HELM v. THE STATE

Supreme Court of Mississippi

April 28, 1890

FROM the circuit court of Yazoo county, HON. J. B. CHRISMAN Judge.

In 1887 the appellant, Helm, was indicted in the court below for the murder of one King. At the June term, 1888, he was tried, and the jury failing to agree upon a verdict, were discharged. At the next term he was again put upon trial, and was convicted of manslaughter. He prosecuted an appeal to this court, and obtained a reversal. The ground upon which the judgment was reversed was this: The defendant on his second trial had pleaded former jeopardy, setting up in his plea that on the first trial, after the evidence was in and after the argument of counsel, the case was duly submitted to the jury for decision on Saturday at half-past four P.M., when they retired to consider of a verdict, and that on the following Monday at half-past eleven A.M., the court, without the consent of defendant, discharged the jury, and that "said discharge of said jury was not compelled by any physical or legal necessity." The court below sustained the demurrer to this plea. This court held that the plea was good, reversed the judgment, and remanded the cause for a new trial, with leave to the state to reply to the plea. See Helm v. The State, 66 Miss. 537. The case being remanded, the state filed a replication admitting that the jury retired to consider a verdict, and afterwards came into court and were discharged, but averring "that the said jury were discharged because they could not agree." The defendant moved to strike out this replication, and afterwards demurred to it. Both the motion and demurrer were overruled, and the issue raised by the replication to this plea was submitted to a jury. On the trial of this issue, the judge who presided at the former trial and several of the discharged jurors, were permitted to testify against the objection of the defendant. The evidence tended to show that the jury could not agree, and that they were discharged for that reason. After retiring, they deliberated until near midnight on Saturday, when they sent the presiding judge a communication stating that they could not agree, and asking to be discharged. On Monday morning they sent two other communications to the same effect, in one of which it was stated that it was impossible for them to agree, and that one of their number was sick. Several of the jurors testified that they were irreconcilably divided, and that it was impossible for them to agree upon a verdict. The presiding judge testified that he was convinced that the jury could not agree, and for that reason discharged them on Monday. He stated that the term of court had expired, and that he knew the jurors were anxious to get home, as he was, but that the discharge was solely because he was convinced that there was no possibility of a verdict. On these facts, the court instructed for the state that if the jury could, or would not have agreed upon a verdict if kept together longer, they must find for the state.

The court refused to charge for defendant the following:--

1. If the jury were discharged for any other reason than they could not agree, and this beyond a reasonable doubt, the jury must discharge defendant.

2. If the court, without sufficient legal necessity, discharged the jury, or if there is a reasonable doubt of this, the jury must find for defendant.

3. The jury must believe, beyond reasonable doubt, that the jury were discharged because they could not agree, or discharge the defendant.

6. If the discharge was before time for reasonable deliberation the verdict should be for defendant.

The jury found the issue in favor of the state, and a motion for a new trial was overruled.

Thereupon the defendant filed another plea of former jeopardy in this that, at the December term, 1888, he was tried for murder and after all the testimony was in, the indictment was withdrawn without his consent and the indictment now pending was substituted for it, and after this substitution and after argument and instructions, the jury found him guilty of manslaughter and never brought in any verdict on the indictment upon which he was arraigned.

To this the state replied that it was ascertained that the original indictment was lost, and on proof of this the court permitted the state to proceed upon an indictment returned at the term of the trial as a copy, but that afterwards, pending the trial, the original was found, and thereupon the court permitted the withdrawal of the copy and the substitution of the original indictment, concluding with an offer to verify by the record. Defendant rejoined, traversing and concluding to the country.

The state's demurrer was sustained to the rejoinder, in so far as it concluded to the country. Issue was then joined and the court, on an inspection of the record, found the issue in favor of the state. Motion for a new trial on this issue was overruled.

Defendant was then put upon his trial for manslaughter on the original indictment, and was convicted. After motion for a new trial overruled, he prosecuted this appeal.

The other facts necessary to an understanding of the case are stated in the opinion of the court.

Affirmed.

Calhoon & Green, for appellants.

1. We submit that the evidence shows that the discharge of the jury on the previous trial was without any physical or legal necessity. On the former appeal this court said: "It is overruling necessity that justifies the discharge of a jury without the consent of the prisoner." 66 Miss. 537. Here the jury retired Saturday afternoon, and were discharged Monday morning. Sunday intervened and they deliberated, say eight hours in all. Will the court say that this is a reasonable time in a murder trial? We submit that the testimony of the presiding judge as to his reason for discharging the jury is wholly insufficient. Nothing but actual physical or legal necessity could justify the discharge, and it is practically admitted by the judge that none such existed in this case. The main ground upon which he seems to have acted is that from his knowledge of the jury he was convinced that they could not agree. This certainly cannot be taken as legal evidence. The written communication from the jury amounted to nothing. It is a favorite dodge of juries to begin plying the judge with notes that they are unable to agree. The fact that the jury lived at a distance, and were anxious to get home, could not be considered. The judge lives at a distance, and he wants to get home, and the prisoner in jail is also very "anxious to get home." Now the judge testifies that all these things operated on his mind to induce a discharge. This being so, the discharge was unlawful.

The replication of the state is that the jury were discharged because they could not agree. It does not deny former jeopardy, nor does it aver that the jury could not agree after sufficient deliberations. There was really no issue. The averment that the jury "could not agree" is not susceptible of proof or counter-proof. The record itself must show a physical or legal necessity for the discharge. Once on trial before a jury, and the person is in jeopardy. To avoid this, the record must show a valid reason for a dismissal. There are no intendments. The record must show every step in a legal and orderly manner.

We submit that the note from the jury to the judge was incompetent, and so was the testimony of the juror Kelly, and the instruction given the jury to find for the state if they believed that the former jury "could not and would not have agreed was improper." These all carry out the false issue tried. For these reasons, we submit that the judgment must be reversed.

2. It was error to permit a copy of the indictment to be used on the trial of the case. Here there were two different indictments, by different grand juries, at different terms of the court. We know of no law authorizing a trial on a copy when an indictment is lost. Section 2293, code 1880, does not apply to criminal proceedings. The statute and the constitution require a trial on the indictment, or on a certified copy in case of a change of venue. The substitute was not a copy of the original indictment, but it was a separate indictment. What rights has a prisoner in such mixing of records? And what rights has he on pleading former jeopardy where the court confines to a mere inspection of the record?

3. It was error to grant the motion for a new trial because of the bias of the juror Johnson, and in not waiting for the newly-discovered evidence as to this. The court has gone further than this in requiring jurors to be above suspicion. The evidence here not only throws suspicion over Johnson, but makes it clear that he was an unfair juror.

4. The court should have permitted the witness, who testified as to what King said before his death about the shooting, not as a dying declaration, but as a declaration against interest. We are aware it has been held differently. 1 Wharton Cr. L., § 682. But we are unable to see why the rule should be different in civil and criminal cases. Men are less apt to put themselves in the wrong in fights than in money matters.

5. It was error to admit the record of the conviction of the witness, Mise, of a misdemeanor. It is a conviction of crimes only which may be offered. Code, §§ 1600, 1607. The case should be reversed for this.

6. The eighth charge for the state is clearly illegal and most dangerous to the prisoner. The essential qualification is omitted that the defendant must have been provoked to fight, and killed King in pursuance of the original intent.

R. N. Miller, district attorney, and T. M. Miller, attorney-general, for the state.

The proper issue was submitted to the...