Johnson v. State

• Decision Date: 03 November 1900
• Citation: 59 S.W. 34,68 Ark. 401
• Parties: JOHNSON v. STATE
• Court: Arkansas Supreme Court

59 S.W. 34

68 Ark. 401

JOHNSON v. STATE

Supreme Court of Arkansas

November 3, 1900

Appeal from Lonoke Circuit Court, GEORGE M. CHAPLINE, Judge.

Judgment reversed and cause remanded.

Ratcliffe & Fletcher, for appellant.

The court erred in denying a continuance and in excluding the evidence of Russell. 21 Ark. 460. The court admitted incompetent evidence, and its mere direction to the jury that they should not consider it did not cure the error. 60 Ark 89. It was error to allow the jury to disperse during the trial without the admonition required by Sand. & H. Dig § 2237. 44 Ark. 115; 57 Ark. 1; 1 Bish. Cr. Proc §§ 991-2-3; 44 Ill. 452; 9 Sin. & M. 465.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

The defendant was not prejudiced by the failure of the court to admonish the jury.

OPINION

HUGHES, J.

This is an appeal from a conviction of larceny, and one of the grounds of the motion below for a new trial is that, after the trial had been commenced and part of the testimony had been taken, the jury in the case were allowed to disperse and separate as they chose, without being admonished by the court as required by section 2237 of Sandels & Hill's Digest, which is as follows: "The jury, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit any one to speak to or communicate with them on any subject connected with the trial and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express an opinion thereon, until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment."

In section 2236 id., it is provided that "the jurors, before the case is submitted to them may, in the discretion of the court, be permitted to separate, or be kept together in charge of proper officers."

It is held in Johnson v. State, 32 Ark. 309, that it is within the sound discretion of the court to permit the jury to separate either before or after the cause is submitted to them, but such discretion should be exercised, especially in trials for felony, with the utmost caution. " The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves." Latter clause of § 2236, Sandels & Hill's Digest. In reference to this clause of this section it is held in Alterberry v. State, 56 Ark. 515, 20 S.W. 411, that it is too late to object after verdict that the officer in charge of the jury was not sworn as directed by this section, where the defendant was present when the jury retired, and did not request that the oath be administered, nor object.

It seems that if a jury in a criminal case, or any portion of it, have been exposed to undue influence, either by the whole jury being under charge of an unsworn officer, or any portion of the jury have separated from the others and had intercourse, or opportunity of intercourse, with third persons, and it does not affirmatively appear that no consequences were affected upon the jury by such exposure, and the possibility of undue influence be not wholly negative, the verdict of such jury will be set aside. It seems, however, it would be otherwise, if the record showed that no undue influence had been exerted or attempted. McCann v. State, 17 Miss. 465, 9 S. & M. 465; Lewis v. People, 44 Ill. 452.

In reference to this question see Maclin v State, 44 Ark. 115; Vaughan v. State, 57 Ark. 1, 20 S.W. 588. In Maclin v. State, it, is held that "the separation of a juror from his fellows pending the trial casts upon the state the burden of proving that no improper influence was brought to bear upon the juror during his absence. In other words, the mere fact that a juror separates from his fellows without the order of the court is prima facie...