Morris v. State

• Decision Date: 25 September 1928
• Docket Number: 1518
• Citation: 39 Wyo. 157,270 P. 415
• Parties: MORRIS v. STATE
• Court: Wyoming Supreme Court

270 P. 415

39 Wyo. 157

MORRIS v. STATE

No. 1518

Supreme Court of Wyoming

September 25, 1928

Lee Morris was convicted of statutory rape, and he brings error.

Affirmed.

Thomas M. Hyde and C. A. Zaring, for plaintiffs in error.

The evidence of misconduct on the part of one of the jurors was sufficient to warrant a new trial. Perry v. Bailey, 12 Kan. 539; Johnson v. Husband, 22 Kan. 277; Wright v. Ill. Co., 20 Ia. 195; Harris v State, 24 Nebr. 803, 40 N.W. 317; State v. Rambo (Kan.) 77 P. 563. The Kansas statute is practically the same as that of Wyoming, 7548 C. S. Where prejudice apparently resulted from improper statements by jurors while deliberating a new trial should be granted, 16 C. J. 2662 pp 1672-1674; Peiffer v. Commonwealth, 15 Pa. 486; Commonwealth v. Fisher, Pa. 75 A. 204; Anchicks v. State, 6 Tex.App. 524; Mitchell v. State, (Tex.) 36 S.W. 367. Affidavits have been received to show: (1) Misconduct and improper remarks by officers in charge: Nelms v. State, 21 Miss. 500. (2) That newspapers were introduced into the jury room and read. Mattox v. U.S., 146 U.S. 140. (3) That an outsider offered a bribe to a juror. Mathis v. State, 18 Ga. 343. State v. Woods, 30 P. 520. The courts recognize a presumption of prejudice from certain misconduct. Snow v. State, 20 A. L. R. 1181. We believe the affidavit of Woodruff Gwynn was sufficient to create a presumption of prejudice. McKanan v. Baltimore Co., (Pa.) 72 A. 251; Yung Chung v. State, (Ariz.) 136 P. 631; Wiggin v. Plumer, 31 N.H. 251; Jewsburg v. Sperry, 85 Ill. 56.

W. O. Wilson, Attorney General, and John Dillon, Special Attorney General for defendant in error.

The general ruling is that in criminal cases affidavits of jurors impeaching their verdict will not be received or considered. 27 R. C. L. 896. R. R. Co. v. Smith, 155 P. 233; Bank v. Ross, 152 P. 1113; Jolly v. Doolittle, (Ia.) 149 N.W. 890; Hyde v. U.S. 32, S.Ct. 808. Exceptions are noted where the affidavits show facts not inherent in the verdict itself. The alleged misconduct must be such as to warrant the belief that the fairness of the trial was impaired, 16 R. C. L. 312; Callahan v. Railway Co., 158 F. 988; Mattox v. U.S., 146 U.S. 140-148. The Gwynn affidavit was mere hearsay and should not have been received, 27 R. C. L. 899, but at most it merely shows that the prejudice of the juror was brought about from the evidence at the trial.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case is before the court upon proceedings in error instituted by the plaintiff in error Lee Morris, to review his conviction of the crime of statutory rape in the District Court of Big Horn County. After the jury's verdict had been received, Morris filed a motion for a new trial, supported by affidavits. This was, by the court, overruled. The only error assigned and argued for our consideration is that ruling. The evidence in the case is not here, the bill of exceptions containing merely the verdict of the jury, the judgment of the court thereon, the motion for a new trial and the supporting affidavits, the proceedings had in connection with the hearing of the motion and the order of the court disposing of it, together with the necessary exceptions taken to such order.

The motion for a new trial is based solely upon alleged misconduct of the jury while in the jury room. The motion charges that one of the jurors "while said jury was deliberating on their verdict in the jury room on the forenoon of March 16, 1927, made the following statements, in substance, to and in the presence of all of the said jurors: 'I have been offered One Hundred ($ 100.00) Dollars by them (meaning the defendant or someone in his behalf) if I will hang the jury;'" that the statement was made to influence the jury to return a verdict against Morris. The motion also alleges misconduct on the part of the juror who made the statement aforesaid in that he "was biased and prejudiced against the defendant prior to the time that he was chosen as a juror." The affidavits of a number of the jurors were presented to the court in support of the first ground of the motion. All of the affidavits, in substance, aver that the statement above detailed was made, as charged. Some of the jurors depose either that they were influenced as to their verdict by the statement or that they believe it influenced some of the other jurors in that respect. The second ground of the motion was supported by the affidavit of one Woodruff Gwynn, wherein it was stated that affiant had conversed with the juror above referred to on the day after the trial had been concluded and the jury discharged, and the juror had displayed intense prejudice against Morris and had said: "When I found out that he (meaning Lee Morris) was charged with rape on that half-witted girl I was for convicting the Son of a B, and when I went into the jury room I told the jury that I would stick until hell froze over in order to convict him." No evidence or affidavits on the part of the State were presented controverting those offered in support of the motion.

In The Pullman Company v. Finley, 20 Wyo. 456, 125 P. 380, where this court had under consideration error assigned because the trial court had overruled a motion for a new trial on the ground, among others, of alleged misconduct on the part of the jury, it being asserted that a quotient verdict had been rendered, and the affidavits of two of the jurors were presented to establish this, it was said:

"It was expressly held by this court in Bunce v. McMahon, 6 Wyo. 24, 41, 42 P. 23, that the affidavit of jurors can not be received to impeach their verdict. It was in effect so held in Gustavenson v. State, 10 Wyo. 300, 68 P. 1006. That being the settled rule in this state the affidavit of the jurors relied upon by the defendant could not be received and considered by the trial court to impeach their verdict on the ground of their misconduct. They were not competent proof of the facts therein deposed to, and the court properly refused to grant a new trial upon this ground."

Neither this decision nor the other cases from this court mentioned in the quoted excerpt appear to have been discussed or distinguished by plaintiff in error as regards the case at bar. Logically, they would seem to dispose of the first ground of his motion for a new trial adversely to his contention thereon. See also McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300, and the cases of Stout v. United States, (C. C. A.) 227 F. 799, at 804; (certiorari denied, 241 U.S. 664, 36 S.Ct. 549, 60 L.Ed. 1227), and Stewart v. United States, (C. C. A.) 300 F. 769, at 788, illustrating the application and interpretation of the rule of the Federal Supreme Court by the lower courts of the federal system. The point is very fully reviewed also in Keith v. State, 7 Okla. Crim. 156, 123 P. 172. A recent case to the same effect is State v. Guillory, 163 La. 98, 111 So. 612.

There is yet another reason which conclusively disposes of that part of the motion for a new trial, just discussed, against plaintiff in error. There is no showing in the record now before us that the plaintiff in error was not connected in any way with the juror's alleged misconduct. This requirement...