Messenger v. State

• Decision Date: 13 December 1898
• Docket Number: 18,730
• Citation: 52 N.E. 147,152 Ind. 227
• Parties: Messenger v. The State of Indiana
• Court: Indiana Supreme Court

52 N.E. 147

152 Ind. 227

Messenger v. The State of Indiana

No. 18,730

Supreme Court of Indiana

December 13, 1898

Rehearing Denied Feb. 21, 1899.

From the Starke Circuit Court.

Affirmed.

Burson & Burson, for appellant.

William L. Taylor, Attorney-General, Merrill Moores and F. J Vurpillat, for State.

Jordan J. Howard, J., concurs in result.

OPINION

Jordan, J.

Appellant was charged by indictment with the crime of murder in the first degree, and, upon a trial by jury, was convicted of murder in the second degree, and, over his motion for a new trial, judgment on the verdict was rendered that he be imprisoned for life in the state prison. The only error assigned in this appeal relates to the decision of the trial court in denying his motion for a newtrial. Hiscounsel, in their brief, urge but two reasons for reversal, namely: (1) Misconduct of the bailiff in charge of the jury, which conduct, it is alleged, prevented appellant from having a fair trial; (2) that the verdict of the jury is not sustained by sufficient evidence.

We are requested by the learned counsel appearing for appellant to examine and consider the evidence in connection with the alleged misconduct of the jury bailiff, in order that we may be better enabled to determine the question involved in this feature of the case. We have carefully read and considered the evidence, and, while it may be said that it is conflicting to some extent, still it amply sustains the judgment. The misconduct imputed to the bailiff in charge of the jury arises out of the alleged fact that, after the jury had retired to deliberate on a verdict, and after their deliberation had continued for a number of hours, a member thereof came from the court room, which the jury was then occupying, to the door of the room leading from the court room to the sheriff's office, and inquired of the bailiff for the judge of the court, stating at the time that the jury were unable to agree and that they desired to see the judge. It is claimed that the bailiff, who at the time was in the sheriff's office, in response to this inquiry, informed this juror "that the judge had said that they would be a great deal older than they were before he would let them out, unless they agreed."

Appellant in the lower court, endeavored to support the issue raised under his motion for a new trial, relative to the alleged misconduct of the bailiff, by the affidavit of his counsel, whose statements were based merely upon information and belief, and by the affidavits of Jesse F. and Albert Miller, who each claimed to have been in the sheriff's office at the time and overheard the conversation between the juror and the bailiff. The evidence presented by appellant by these several affidavits in support of the issue upon his part was controverted by the State by the affidavits of George H. Wenigar, the bailiff in question, and W. H. Harter, the sheriff. The latter states in his affidavit that he had no authority from the judge to carry any information to the jury, or to any member thereof, and that he did not request the bailiff to inform the juror what it was claimed by defendant that he did relative to keeping the jury together unless they agreed. The sheriff further deposed that, at the time it was alleged that the bailiff was communicating with the juror, that the door of the sheriff's office opening into the corridor was closed, and that neither he nor any other person in his office saw the juror, or heard what was said between the latter and the bailiff at the time of the conversation. Wenigar, the bailiff, states that he was in charge of the jury on the occasion in controversy; that on the afternoon of Saturday, January 8, 1898, when the jury was occupying the court room, he was called "by a knock on the door" leading from that room out into the corridor; that the juror did not request to see the judge, but simply stated to him that the jury could not agree; that all he said in response to this...