Miller v. State

• Decision Date: 12 April 1920
• Docket Number: 21074
• Citation: 84 So. 161,122 Miss. 19
• Court: Mississippi Supreme Court
• Parties: MILLER v. STATE

84 So. 161

122 Miss. 19

MILLER v. STATE

No. 21074

Supreme Court of Mississippi

April 12, 1920

March 1920

1 JURY. Accused entitled to have capital case heard by "legal jury" In capital cases the accused is entitled to have his case heard and considered by a legal jury, that is, a jury impaneled and specially sworn to "well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law," as provided by section 1483, Cod of 1906.

2. JURY. Oaths on voir dire and for trial different.

The voir dire oath administered to the jury for the purpose of ascertaining qualifications of jurors is different from the oath required to be taken to try the issue joined between the state and the prisoner and a true verdict render.

3. JURY. Unsworn jury incompetent, though subsequently sworn. An unsworn jury to try the issue joined in a capital case is incomptetent to recieve and act upon evidence submitted to it, even though it be subsequently sworn to try the issue joined, after all evidence is submitted and before verdict is rendered.

4. JURY. Oath to try issues essential, although jury laws directory. While the jury laws are merely directory, yet the oath of the jury to try the issue, as distinguished from the preliminary impaneling oath, is essential to a legal jury, according to the directory jury statute, as well as section 1483, Code of 1906.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

John Henry Miller was convicted of murder and he appeals.

Judgment reversed and case remanded.

Brewer, Brewer & Brewer and Ramsey, for appellant.

The outstanding and glaring error committed in the trial of this case is, that the jury who tried the defendant and who found him guilty, with the punishment of life in the penitentiary, were not sworn to try the issue joined between the defendant and the state of Mississippi, until all the evidence, both for the state and the defendant, had been introduced and both sides had closed their case and the instructions had been passed upon by the court, and until after the jury had had some two or three hours in which to deliberate over the case.

In Sec. 1241 of Hemingway's Code, we find the law applicable to the swearing of jurors in a capital case. In this section of the code we find that it is the law that "the jurors in a capital case shall be sworn to well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law." In the case now before the court it is admitted by the trial judge that the jury was impaneled, that the testimony both for the state and for the defendant had all been introduced, and that both sides had rested, that the instructions had been passed upon, and that court recessed for about two hours and upon the reconvening of court it was called to the court's attention that the jury had not been sworn in accordance with the law, and that then and there the court for the first time, asked the jurors to stand up and be sworn. But, before this was done, counsel representing the defendant asked that a mistrial be entered and the jury discharged. This motion the court denied, and then proceeded to swear the jurors to try a case which had already been tried.

We want to be frank with this court and state that if this question has ever been raised in the state of Mississippi, in the manner and form in which it is raised in this case, we have not been able, after a very diligent search, to find the authority. It is true that the question has been raised as to the failure to swear a jury in a misdemeanor case, but the objection, in those cases which are reported, was not raised until after the verdict, and of course, under our statutes the error was cured by the verdict; and the courts, in deciding such cases, held that the defendant could not be heard to complain after he had allowed his case to go to the jury and allowed them to bring in a verdict without raising an objection to the jury being unsworn. But in this case we are confronted with a different proposition. Just as soon as it developed and was made known to the court that the jury had not been sworn, counsel asked that a mistrial be entered and the jury discharged. Counsel did not take the chances of a verdict in the defendant's favor and wait until after verdict before raising the objection, but before the jury was sworn, and before anything further was done after it was made known to the court that the jury had not been sworn, every possible objection was made by counsel to the continuing of the trial, and every conceivable motion was made in an effort to induce the court to enter an order of mistrial and discharge the jury.

In addition to the motion for a mistrial, at the proper time and place, counsel filed a motion for arrest of judgment, because of the fact that the verdict was rendered by a jury that had not been sworn according to law, and by a jury who necessarily could not, under oath, try the issues between the state and the defendant according to the evidence and the law, for the reason that, before being sworn, the evidence had all been introduced. This motion was also overruled.

The court will bear in mind that when the trial court adjourned for the noon hour on the day on which this case was being tried, the jury had not been sworn; that at that time they had heard all the facts, and the case so far as the evidence was concerned, was closed; that nothing further remained to be done but for the jury to be handed the instructions of the court, and for counsel to make their respective arguments. As will be shown by the record in this case, at page 220 thereof, the defendant attempted to show by one of the jurors that during the recess of the court, and after the testimony had been closed, that all of the jurors discussed the case and attempted to show that each and every one of them, and especially that particular juror, had made up their minds as to the verdict that should be rendered, and as to the verdict that was rendered and handed to the court and upon which the judgment of the court was entered. The trial court refused to allow any testimony of any kind to this effect. As stated by counsel at the time the questions were asked they were purpose of showing any illegal conduct on the part of the juror placed on the stand, or of any of the other jurors, and that it was not for the purpose of trying to impeach anything that was done by the jury after it was sworn and impaneled as a jury; but, as stated by counsel at the time the questions were asked they were asked to find out what occurred prior to the time that the jurors were sworn to try the issue between the defendant and the state of Mississippi. At the time of the trial of this case in the court below counsel were and are now aware of the fact that a juror is incompetent to impeach his verdict about such matters as occurred in the jury box after he is sworn and impaneled as a juror; but, on the other hand, we do not find any law anywhere whereby a defendant is precluded from questioning a juror or jurors about things that happened prior to becoming jurors. We respectfully submit that the jury in this case was not a legal jury at the time the things happened about which the particular juror was being questioned. The jury had not been sworn to try the case and the twelve men as they then stood were no more than any other twelve men that the court might have called together, without an oath of any kind, for the purpose of trying the defendant.

It must be admitted that if a witness were put on the stand and allowed to testify in a criminal case, without being sworn, that he could not then be sworn and any effect be given to this testimony, especially when objected to. In other words, the oath of a witness is to tell the truth, and nothing but the truth, and this oath would not relate back to something which he had already told. And it is a general rule of law that where a witness testifies without having been sworn, the verdict will be set aside. In support of this contention we cite the case of Barr v. State of Mississippi, reported in 23 So. 628. This was a case where a verdict was probably obtained upon the testimony of one John Lunde, a witness on the part of the state who was not sworn as such witness. This fact was not discovered until after the defendant had been convicted. A motion for a new trial was made and refused and an appeal was had to this court. In writing the opinion in this case Judge TERRAL had the following to say: "By the common law, evidence is given only under oath. In Hawkes v. Baker, 6 Maine 72, it is said to be the duty of the court to see that the oath is administered to the witness and that the defendant has the right to presume that a witness taking the stand has been sworn, and that a party convicted on unsworn evidence had not enjoyed the protection of the laws to which he is entitled."

If this be true, why is it not equally necessary that a jury trying a defendant in a capital case be sworn before the introduction of the evidence? It will probably be argued that the section of the code requiring that the jurors be sworn in capital cases does not say when they shall be sworn, and that the swearing of them at any time is sufficient. Certainly this is neither the spirit nor the letter of the law. The statute plainly says that the jurors shall be sworn to try the issue between the state and the prisoner. What is the issue in this case and when was the issue made and raised? Not by the argument by the counsel for no mention is made in the section of the code that any attention should be paid to what counsel may say, and there is no requirement...