Pepper v. State

• Decision Date: 11 November 1946
• Docket Number: 36235.
• Citation: 27 So.2d 842,200 Miss. 891
• Court: Mississippi Supreme Court
• Parties: PEPPER v. STATE.

27 So.2d 842

200 Miss. 891

PEPPER v. STATE.

No. 36235.

Supreme Court of Mississippi

November 11, 1946

Alfred Stoner, of Greenwood, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington, Asst. Atty. Gen for appellee.

McGEHEE, Justice.

The defendant was convicted of assault and battery with intent to kill and murder, and was sentenced to serve a term of five years in the State penitentiary. On this appeal, he does not challenge the sufficiency of the evidence to amply sustain such conviction, nor does he contend that the trial court committed any error except by its refusal to grant the accused a new trial on the ground that at the close of the evidence, and during the noon recess which intervened before the case was argued and submitted, the bailiff permitted a conversation between a young man from another county and a juror who had been in the military service with him, and which conversation took place under the following circumstances:

This conversation occurred while the juror and his visiting friend were seated on the front row of the seats for spectators in the courtroom, in plain view of the other eleven jurors who were seated in the jury box and the two jury bailiffs. When the conversation began, there was no one else in the courtroom. The jury was awaiting the return of the judge and the attorneys in the case. One of the bailiffs had been requested by this visitor to permit him to converse with this juror about the G. I. Bill of Rights, 38 U.S.C.A.§ 693 et seq. This permission was granted, and the bailiff stood nearby during a part of the four or five minute conversation in question. While there, the participants were heard by him to begin discussing this Bill of Rights, in pursuance of the permission granted them. They were instructed by the bailiff in the outset not to discuss anything else. The bailiff testified that before the conversation ended, he left the immediate presence of the participants therein and went to a place near the back of the courtroom where some two or three persons, who were interested on behalf of the defendant, had become seated, and that the trial judge 'then came in' the courtroom. Therefore, it appears that the bailiff did not hear all of the conversation now complained of.

As to the real purpose for which the visitor desired to converse with the juror the testimony of this bailiff discloses by hearsay evidence, (but which was not objected to and was therefore competent under the decision of Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457 and cases therein cited), that the young man had come from Water Valley, Mississippi, during the forenoon of that day and had come to the home of the juror, a distance of several miles from the place of the trial, to see him, and had there learned that the juror was at court in the City of Greenwood. That this young man then proceeded to Greenwood, saw the sheriff at about the time the jury was coming downstairs from the courtroom for the noon recess, asked for and was granted permission to shake hands with this juror, and was thereupon advised by the latter that the jury was to be back in the courtroom after the recess hour.

It does not appear that either the visiting young man or the juror sought to have any conversation with each other during the noon recess prior to the jury's return to the courtroom and not then until they had obtained permission from the bailiff to discuss the matter about which the young man desired some information. Nothing occurred to indicate that they desired or held a secret or confidential conversation. The bailiff departed from where the conversation began, and of his own volition. There is no reason to infer that either of them could anticipate that the bailiff would leave them alone or that they had any desire that he should do so. Moreover, there is no ground upon which to base a well-founded suspicion that any improper influences were used against the defendant in the conversation complained of. It does not appear that the visitor even knew the nature of the proceeding being tried, whether civil or criminal, or that he had ever before heard of either the accused or the victim of his assault, or was acquainted with any person interested either in the prosecution or defense.

Under the foregoing circumstances, the trial judge had no reason to suspect that any improper influence had been used by this young man against the accused. A mere possibility that such influence might have been used on the occasion complained of is not sufficient to justify the setting aside of this conviction. The cases of Sanders v. State, 150 Miss 296, 116 So. 433, and Turner v. State, 176 Miss. 862, 170 So. 642, and other decisions of this Court have expressly so held. Hence, the trial judge overruled the motion for a new trial under the proof heard thereon.

In the nature of things, there must occur in the course of protracted criminal trials some irregularities, as well as errors, which are prima facie prejudicial to the constitutional right of the accused to a fair and impartial trial, and it becomes necessary during such trials for the judge to pass on certain issues of fact, aside from those for the determination of the jury which involve the guilt or innocence of the accused on the merits, and where it appears to his entire satisfaction from convincing evidence that no prejudice did result from the act in question, he should not set aside a conviction. Only the courts of West Virginia, Idaho and New Hampshire require that the trial judge shall be satisfied beyond a reasonable doubt or to the exclusion of every other reasonable hypothesis that no improper influence has been exerted against the accused.

In the Mississippi case of Hare v. State, 4 How. 187, it appears from the statement of the facts in the case that after the issue had been submitted to the jury, a man by the name of Woodley went into the room unnoticed by the bailiff, and that notwithstanding this intrusion, the bailiff withdrew to obtain water for the jury and left them under the charge of such intruder, and it appears from the bill of exceptions that Woodley conversed with the jurors on the subject of the prisoner's guilt. In that case, Judge Sharkey said that: 'Whilst the law is rigidly vigilant in guarding and preserving the purity of jury trials, yet it will not for light or trivial causes, impugn the integrity of juries, or question the solemnity and impartiality of verdicts. But if the verdict be given under circumstances which might conduce to an improper influence, or the natural tendency of which might be to produce bias or corruption, it cannot then be said to be above suspicion; and if it be not, it must fall short of that perfection which the law requires, and which under a more guarded administration, it is capable of producing. It is not necessary that any attempt should be made to bias the minds of the jurors, or that any pernicious influence should be exerted. The door to tampering is to be closed; this is the only security; for if it be left open, it may be predicted with certainty, that the evil consequences will fall some where.'

The substance of the foregoing quotation from Hare's case has been brought forward in some of the other earlier cases decided by this Court, such as McQuillen v. State, 8 Smedes & M. 587, and Woods v. State, 43 Miss. 364, where the jurors had mingled with the 'crowd' under circumstances which not only afforded an opportunity for them to imbibe the prejudice of those in attendance upon the court, but which indicated a strong probability that they would naturally have done so, but it should be kept in mind that what had occurred in these particular cases furnished the occasion for the use of strong language to condemn an injustice done by the incident complained of. Moreover, in the later case of Skates v. State, 64 Miss. 644, 1 So. 843, 60 Am.Rep. 70, Judge Cooper expressly stated that the language of these earlier cases must be interpreted by the circumstances of the cases in which it was used.

And, theretofore, in the case of Green v. State, 59 Miss. 501, Judge Cooper had also very aptly said that: 'It is not every act of misconduct on the part of jurors which will entitle a defendant to a new trial, but where such acts are shown, if they are of such character as may have prejudiced the defendant, the presumption is that they did, and it devolves upon the State to establish the fact that such result did not follow. But where all of the facts and circumstances are known, and it appears with reasonable certainty that though there was exposure to influences which might have perverted or corrupted the judgment of the juror, it was not done, then the verdict ought to stand.' But, no misconduct on the part of either the juror or the young man who talked to him appears from this record, since they acted with permission of the bailiff, and in the utmost good faith, insofar as the proof discloses, when discussing the G. I. Bill of Rights--a subject which would naturally have been inexhaustible within such a short period of four or five minutes. Nor is it at all unnatural that the young man may have thought that his friend, the juror, might be able to give him the particular information that he may have desired in regard thereto.

The requirement that jurors be kept together in felony cases is not prescribed by any statute of this State. It finds its origin in the early common-law decisions, based upon the law of England, which, in the early days, had announced the rule 'that a jury, after the evidence given on the issue ought to be kept together in some convenient place, without meat or drink, fire or candle, * * * and without speech with any, unless it be the bailiff, and with him if the...