Smith v. State
| Decision Date | 06 January 1913 |
| Docket Number | 16007 |
| Citation | 60 So. 330,103 Miss. 356 |
| Court | Mississippi Supreme Court |
| Parties | OMAR SMITH v. STATE |
APPEAL from the circuit court of Choctaw county, HON. G. A. MCLEAN Judge.
Omar Smith was convicted of murder and appeals.
Among other errors assigned is the action of the court in giving instructions numbered 8 and 11, requested by the state.
R. N Miller and L. M. Adams, for appellant.
At the trial of this case a jury was selected and one witness Doctor Kilpatrick, examined partially, that is, he was asked a half dozen questions. In the selection of this jury the defendant had exhausted only five of his peremptory challenges, and the state about an equal number, when a telegram was received for one of the jurors, T. E. Smith notifying him that his son was very ill at home and to come quick. Thereupon it was agreed between the defendant and the state that the juror Smith should be excused, which was done.
The defendant then demanded that the remaining eleven jurors remain in the box, and one man selected to fill the place of the juror Smith, the defendant waiving all right to have the eleven retendered to him, or to challenge any of them, and demanded that the eleven remain as already selected, and that another juror be selected in the selection of which juror the defendant would exercise only his remaining unexhausted peremptory challenge of seven, and the state having its unexhausted peremptory challenges. In other words, the defendant demanded to proceed with the eleven already selected and fill Smith's place just as though Smith had never been selected, and thus to complete the jury.
This the court overruled, and over the defendant's objection and protest, entered a mistrial, all of which is shown by the defendant's first special bill of exceptions.
And thereupon the court awarded on the 2nd of February, 1912, a new special venire at the instance of the state and on the 23rd day of February, 1912, proceeded to organize a second jury to try the defendant, and at this time the defendant again demanded that he be tendered the eleven jurors remaining after the juror Smith had been excused on the 23rd day of February, which had already been empaneled, to be used in empaneling the new jury, and this demand the court overruled, as shown by the defendant's second special bill of exceptions.
In empaneling this second jury a juror, by name McQuirter, was thoroughly examined by counsel on both sides, and by the court, and was pronounced by the court to be thoroughly qualified in all respects, except that it was disclosed by him, McQuirter, that he had married a second cousin of an uncle of the deceased by marriage. The defendant at this time had exhausted all of his peremptory challenges. The state thereupon objected to McQuirter and challenged him for cause, and the court sustained this challenge for cause and dismissed McQuirter, over the defendant's objection. At this time, we repeat, the defendant had exhausted all of his peremptory challenges, and the state had not.
As to the procedure of the court in ordering a new trial when the juror Smith was excused, we assume that this was done by the court under a misapprehension of the trial rule, by a misunderstanding of the court of the State v. Dennis, 96 Miss. 96.
In that case, after all the testimony had been offered, practically, and the juror became insane, the defendant demanded that a mistrial be entered, and a trial de novo awarded, and this the court held, in that case, should have been done, and put that deliverance partially on the ground that all the testimony before the first jury was not begun anew and offered over again after the new juror had been selected. That is all the court decided in this case. In other words, the court held that the proper practice was when the evidence has all been offered to enter a mistrial and award a new trial, where one juror is excused, on the objection of the defendant.
But in two other cases, to wit: Jefferson's case, 52 Miss. 767 and Robert's case, 72 Miss. 728, this court held, and that too, over objection made by the defendant that where only one witness had been examined or started to be examined, and one juror had been excused, that the proper practice was to proceed with the eleven and substitute the one juror, and go on. Now, this was what was done, in the Dennis case, supra, and what the court, in my humble judgment, ought to have affirmed. See 17 Am. & Eng. Ency. of Law, section 1258 where the true rule is stated, and all our own decisions of McGuire v. State, Jefferson v. State, and Roberts v. State are cited.
The court will observe that it was a clear error, and ought to reverse this case to refuse to substitute a juror in Smith's place, and go on with the jurors first selected, where the defendant was demanding that this practice be pursued. And particularly is this true when it further appears, as in this case, from the record, that the defendant did not get a fair and impartial jury in the second jury that was empaneled and tried the case, and in the selection of which the defendant had exhausted all of his peremptory challenges before the jury was empaneled. And we respectively submit that this procedure of the court which arbitrarily deprived the defendant of a fair and impartial jury ought to reverse this case.
This is not a technicality, but is a substantial invasion by the court of the defendant's constitutional guaranty of a fair and impartial trial by an impartial jury. As to the court's ruling in sustaining the state's challenge "for cause" to the juror McQuirter, this is an error of similar character. McQuirter, remember, was the husband of the second cousin of the uncle by marriage of the deceased, as shown by the record. Now, what kin was he to the dead man? The rule of computation is by the civil law, and he could not be figured out to be closer than related by double affinity in the eighth or tenth degree, and the rule is equally well settled that beyond the fourth or fifth degree, collaterally, the law recognizes no relationship whatever.
So it is, that after exhausting our peremptory challenges we were thus arbitrarily deprived of McQuirter as a juror on the challenge of the state for cause, for relationship that did not exist. Loman v. State, 50 So. 43; L. & N. R. Co. v. Hollorn, 55 So. 1003.
We come, now to the assignment of error, predicated of the fact, as shown by our motion for new trial and the evidence taken on its hearing, that the juror Elliott, who sat and tried the case was thoroughly examined by the court touching his qualifications as a juror and he disclaimed ever having heard of the case or having any opinion about it, and thus on his voir dire, concealed the fact that he was a biased and prejudiced juror.
The testimony taken on the hearing of the motion for a new trial was the affidavit of R. N. Miller and L. M. Adams, who stated that they and all the attorneys for the defendant, were in total ignorance of the prejudice or bias of the juror Elliott, and also the affidavit of the defendant that he was likewise ignorant of the fact that Elliott had formed an opinion and prejudged his case until after the verdict had been rendered, and also the affidavits of Blackwood and Taylor, who testified that immediately after the verdict was rendered that they met Elliott at Blackwood's house, and he there proceeded to state to them that he, the juror Elliott, was present at Ackerman at the last term of the court, when this case was called, and that he heard detailed statements of the facts in this case and that he knew all about the facts in the case when he was summoned as a juror in the case at this term, but that neither the court nor counsel asked him if he had heard the facts or knew of the case and proceeded to tell them that he thought the defendant was guilty and his mind was fully made up when he was selected on the jury to convict the defendant regardless of the proof. And in that conversation he told them that he was opposed to killing and would convict any man who killed another regardless of the circumstances of the case, and when they asked him about the proof, he admitted that the proof showed that the deceased struck the defendant with a pair of brass knucks, but stated that the defendant ought to have been convicted and hanged anyhow.
The full examination of these witnesses, Blackwood and Taylor before the court shows the same thing. ...
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