Shaw v. State

• Decision Date: 20 January 1902
• Citation: Shaw v. State, 79 Miss. 577, 31 So. 209 (Miss. 1902)
• Court: Mississippi Supreme Court
• Parties: WAFER SHAW v. STATE OF MISSISSIPPI

31 So. 209

79 Miss. 577

WAFER SHAW v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 20, 1902

FROM the circuit court of Oktibbeha county. HON. EUGENE O. SYKES Judge.

Appellant Shaw, was indicted at the May, 1900, term of the circuit court of Oktibbeha county on a charge of murder, was tried and convicted of manslaughter, and sentenced to serve a term of years in the penitentiary. From this judgment of the court he appealed to the supreme court, where the case was reversed and remanded. The case on the first appeal is reported Shaw v. State, ante, 21. At the May, 1901, term of said circuit court defendant was again placed on trial, and was convicted the second time of manslaughter and sentenced to ten years in the penitentiary. The case was tried on Saturday of the first week of court, and was submitted to the jury in the afternoon, about 2:30 o'clock of that day. About two hours after the jury had retired to consider the case, the sheriff called to the bailiff who was in charge of the trial jury "that the judge would leave for his home in a few minutes, and that, unless they would return a verdict at once, they would be held until Monday." Within a few minutes after this the jury brought in its verdict. A motion for a new trial was made by defendant setting up, among other grounds, the action of the sheriff in calling to the jury that the judge was going home, and that unless they would return a verdict at once they would be held until the following Monday. In support of this motion jurors were offered by the defendant to show that the act of the sheriff in calling to them as he did influenced them in reaching a verdict. Counsel for the state objected to the introduction of this evidence on the ground that a juror could not impeach his own verdict. The objection was sustained by the court, and defendant excepted. The motion for a new trial was overruled, and from the judgment of the court defendant appealed to the supreme court.

Reversed and remanded.

Carroll & Magruder, for appellant.

The unwarrantable interference of the sheriff with the jury during their deliberations, and his warning to them that the judge would leave and would remain away until the following Monday, were circumstances which largely contributed to the result of this trial. Up to the time of this apparently official communication, which the jury believed to be from the judge, they were unable to agree that the defendant was guilty. The learned trial judge, when the jurors, Freeman and Hartness, were presented by the defendant on motion for new trial to substantiate the facts of this interference by the sheriff, refused to hear the testimony of such jurors upon the ground that they could not be heard to impeach their own verdict. While a juror is not competent to impeach his own verdict (Organ's case, 26 Miss. 78, and Jacobs v. State, 36 Miss. 121; Skates v. State, 64 Miss. 644), nor to show the impropriety of his own conduct (Nelms v. State, 13 Smed. & M., 500; Riggs v. State, 26 Miss. 51), yet it is well settled that his testimony is competent, as in this instance, to show that the sheriff made improper communications to them. Nelms v. State, 13 Smed. & M., 500; Barnett v. Eaton, 62 Miss. 768; Mattox v. U.S. 146 U.S. 140; 28 Am. & Eng. Enc. of Law, 267.

Monroe McClurg, attorney-general, for appellee.

The claim that the jury was influenced by the remark of the sheriff to his deputy is without merit. He did not address the jury, or any member of it, nor did he express either directly or inferentially any opinion as to the guilt or innocence of the accused.

In Pope & Jacobs' case, 36 Miss. 121 (134), this court held:

"If the bailiff in charge of a jury impaneled to try a felony, after their retirement to consider of their verdict, inform them that they shall not have any meat or drink until they have agreed, it will be no cause for setting aside their verdict of conviction." Skates' case, 64 Miss. 644 (651-3).

In Vicksburg Bank v. Moss, 63 Miss. 74 (77), this court held: "The jury trying an action of assumpsit retired to consider of their verdict about three o'clock P.M. on a Saturday. At four o'clock the court was informed that the jury had not agreed, and the plaintiff's counsel stated to the court that he would not consent for them to be discharged till they had returned a verdict. The court then informed the jury, through the bailiff, that they must remain together until they had agreed,...