Poindexter v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Poindexter v. State, 159 S.W. 197, 109 Ark. 179 (Ark. 1913)
• Decision Date: 14 July 1913
• Parties: POINDEXTER v. STATE

159 S.W. 197

109 Ark. 179

POINDEXTER v. STATE

Supreme Court of Arkansas

July 14, 1913

Appeal from Lawrence Circuit Court; R. E. Jeffery, Judge; reversed as to Poindexter, modified and affirmed as to other defendants.

STATEMENT BY THE COURT.

On March 11, 1913, one Benningfield was being tried in the circuit court of Lawrence County on an indictment charging him with murder in the first degree. The attorneys present representing the defendant were L. B. Poindexter and Oscar Blackford. L. C. Going, one of the attorneys for the defendant, was not present while the jury was being selected. He arrived at Walnut Ridge about 2 o'clock Thursday morning, March 13, 1913. He found all the rooms of the Rhea Hotel occupied, and there was no other hotel in town. He was assigned to the room in the Rhea Hotel occupied by Poindexter, associate counsel representing the defendant. He continued to occupy this room with Poindexter until the trial of Benningfield was over. When Going arrived the jury had been empanelled and put in charge of a special officer. The jurors were instructed, among other things, to remain together during the recess of the court, and to let their conduct be, as it had been in the past, free from any sort of criticism, not to separate from each other unless accompanied by the bailiff, stay as nearly as they could separated from crowds, not to permit any one to talk to them about the case or talk in their presence or hearing about it, and not to receive any information as to the merits of the case from any source whatever. The jurors, in the instructions, were impressed with the importance of the case, and their duties and of the necessity of not permitting any one to approach them concerning it.

Going did not know, at that time, the juror, Moseley, and the bailiff, Freer. On Thursday he cross examined the witnesses for the State, but gave no attention to the personnel of the jury. During the recess of the court at the noon hour that day Smith, one of the attorneys for the State, and several others drank with Going in room No. 25, occupied by him and Poindexter. After court adjourned in the afternoon of that day, Moseley, accompanied by Freer, the bailiff, started down to the office of the hotel to get a cigar and at the head of the stairs met Going, and some one remarked that he would like to have a drink of whiskey, and Going said that he had some whiskey in his room. Thereupon several persons including Moseley and Freer, went to room No. 25 with Going and took a drink. Moseley and Freer immediately left the room after getting the drink. Going did not at that time know Moseley and Freer, and said he did not know that one was a juror and the other a bailiff, until the bailiff told Going that Moseley was a juror, whereupon Going stated that he might have said something about the case, not knowing Moseley and the bailiff, and Freer replied that he would not have permitted anything to be said about the case. The case was not discussed. Poindexter was not in the room during this occurrence.

The next day, Friday, March 14, Going was about half through with his argument for the defense when the court took a recess for the noon hour, giving cautionary instructions to the jury and the bailiff, as above stated.

Going and Poindexter went to their room. Going took a drink of whiskey, leaving the bottle on the table in the room. He laid down across the bed, resting and thinking about the remaining portion of his argument to be resumed at the afternoon session of the court. Poindexter was making his toilet and preparing for the noon meal. A knock at this juncture was heard at the closed door and one of them said, "Come in;" Moseley and Freer went in. Moseley remarked that if there was any whiskey in the room he was going to have it. He picked up the bottle of whiskey, and stated that "a man don't have to give a man whiskey; when you find it drink it." Some one spoke about that time and said, "You boys better shut that door." One of them closed the door. Moseley took a drink, turned to the hydrant for water and went out. The case was not discussed. Neither Going nor Poindexter knew who was knocking at the door when one of them said, "Come in."

Moseley explained his conduct by saying he was feeling bad and wanted a drink of whiskey. He told the bailiff he "had to have it; he was tired and worn out, and was not used to being penned up like cattle." He went to the room of his own volition. Neither Poindexter nor Going had any knowledge that he was going there at that time. Moseley would not have gone to the room without the bailiff. He was in the custody of the bailiff both times that he got a drink. He had been admonished by the court not to leave the rest of the jury except with the bailiff, and when the bailiff went with him he didn't feel that there was any impropriety in taking a drink in the presence of the bailiff. He had not been admonished by the court not to take a drink. Even if an opportunity had been afforded him he would not have discussed the case nor permitted any one to discuss it in his presence.

Moseley and another juror voted for manslaughter; eight of the jurors stood for murder in the first degree, and two for murder in the second degree. There was a hung jury, and a mistrial of the case.

The prosecuting attorney filed his information, on his official oath, before the judge of the Lawrence Circuit Court accusing the petitioners, Poindexter, Going, Moseley and Freer, of contempt of court, which, among other things alleged that "after the jury in the Benningfield case had been empanelled and had been put in charge of a bailiff to be kept together, and had been instructed to permit no one to talk to them and not to talk to any one themselves with reference to the case, and to prevent all improper influences being brought upon them, J. B. Freer, as the bailiff in charge of said jury, took one J. W. Moseley, a member of said jury, to the private room of said Poindexter and Going, attorneys of record for the defendant, where the said Moseley was given whiskey to drink in an attempt to improperly influence and corrupt the said J. W. Moseley and to have him return a verdict for defendant in the cause; that Moseley, as the juror, did unlawfully and corruptly and contemptuously go to the room of the said Poindexter and Going, the said attorneys, and there partake of whiskey in violation of the court's orders and his duty as a juror in said cause.

"That the said Freer, in violation of the court's instructions, corruptly and contemptuously took the said juror Moseley to the room of the said Going and Poindexter for the purpose of having him given whiskey and otherwise to act improperly as a juror in the said cause.

"That each of the defendants corruptly and contemptuously violated the instructions and orders of the court given to said Freer as bailiff, and to the jury of which the said Moseley was a member, which instructions were given in the presence and with the knowledge of said defendants Poindexter and Going, and Freer and Moseley.

"That the said room referred to as the room of Poindexter and Going was a room in the Rhea Hotel, in the town of Walnut Ridge, Arkansas."

Upon this information the judge made the following order:

"It is therefore ordered that the clerk of this court issue a citation against the said Freer, Moseley, Poindexter and Going, commanding them to appear and show cause on the 28th day of March, 1913, in this court, why they should not be dealt with for said contempt."

The citation, by order of the court, was entered upon the record.

The citation was served upon Moseley on the 27th of March, and upon Freer on March 28, but was not served upon Poindexter or Going until after the return day, but was served upon each of them on March 29.

On the 2d of April, at the same term of court, the information was read by the prosecuting attorney, and the petitioners demurred thereto, generally, for the reason that it did not state a cause of action for contempt, and, specifically, for the reason that it was not verified by oath, and not supported by affidavit. The demurrer was overruled.

The evidence was heard, developing the facts substantially as above set forth, and the court entered up a fine of $ 50 against each of the petitioners, and adjudged that they be imprisoned in the county jail for five days.

The petitioners and appellants filed a motion for a new trial, which was overruled, and they have duly prosecuted their appeal to this court. They, also, have brought up the record for review by certiorari.

Judgment affirmed.

H. L. Ponder and Rose, Hemingway, Cantrell & Loughborough, for appellant Poindexter.

It is impossible to find anything in this appellant's conduct that is in the least censurable. There is nothing on which to base a finding that he was in contempt of court. 134 Mo.App. 55, 114 S.W. 538.

If there is a duty resting on an attorney when he learns of an impropriety on the part of a juror, or other officer of the court, to make report of the fact, it is a mere matter of ethics; not a requirement of the law. Mere failure to report one's knowledge of a crime, is not a criminal offense. 12 Cyc. 193; 1 Am. & Eng. Enc. of L. 267; 3 Cox, C. C. 597; 26 Gratt. (Va.), 956, And we are unable to find any authority for holding that the failure to report misconduct affecting the court's jurisdiction constitutes a contempt.

A. S. Irby, for appellant Moseley.

The judgment should be quashed because:

1. The citation was not issued by the court, but recites that information was "filed before me as judge of said court," and was signed by the judge. There is no order of the court for such citation. 9 Ark. 259.

2. The information does not show that the offense was...