State v. Dodson

• Decision Date: 21 March 1936
• Docket Number: 34685
• Parties: The State v. William Dodson, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 614

338 Mo. 846

The State v. William Dodson, Appellant

No. 34685

Supreme Court of Missouri

March 21, 1936

Appeal from Macon Circuit Court; Hon. V. L. Drain, Judge.

Reversed and remanded.

Lacy & Edwards for appellant.

(1) The bailiff in charge of a jury sworn to try a felony case must not communicate with the jury nor permit others to communicate with them, except on orders of the court. R. S 1929, sec. 3683; 34 A. L. R. 103. (2) A jury impaneled and sworn to try a felony case should not be taken to picture shows, theatres, church, dances and other places of amusement. State v. Jeffries, 210 Mo. 302; 15 A. L R. 917; 16 C. J. 1073; Mansfield v. Comm., 174 S.W 16; 35 L. R. A. 518; 116 S.W. 801; 151 P. 832. (3) Burden is on the State to show that such irregularities have not prejudiced the defendant. 55 L. R. A. 176; State v. Jeffries, 210 Mo. 302; State v. McGee, 83 S.W.2d 98. (4) Separation of jury during progress of trial, if objected to by defendant, requires a new trial, unless the State affirmatively shows jurors were not subjected to improper influence. State v. McGee, 83 S.W.2d 98; State v. Shawley, 334 Mo. 353; State v. Orrick, 106 Mo. 111. (5) Separation of jury after they retire to deliberate on a verdict requires a new trial. Secs. 3682, 3683, R. S. 1929; State v. Asbury, 327 Mo. 180; State v. Hayes, 323 Mo. 578; State v. McGee, 83 S.W.2d 98. (5) The two main reasons for keeping a jury together, particularly after the case has been submitted, are (1) so that they may not be actively influenced by outsiders, and (2) so that they may give their whole undivided and serious attention to their duties, having in their care the life and liberty of a human being, and the affidavits of jurors that they were not influenced do not meet the requirement of State to show they were not influenced. State v. Hayes, 323 Mo. 578.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General for respondent.

(1) There was no misconduct on the part of the sheriff, his bailiff, or any officer who had charge of the jury. State v. Sebastian, 215 Mo. 90; State v. Taylor, 134 Mo. 160; State v. Neighbaker, 184 Mo. 211, 83 S.W. 523; State v. Roscoe, 239 Mo. 587. (2) The conduct of the jury was above reproach in every place and at all times during the progress of the trial, and their verdict is not the result of outside influence. State v. Fairlamb, 121 Mo. 152, 25 S.W. 895.

OPINION

Tipton, P. J.

In the Circuit Court of Macon County, Missouri, an information was filed charging the appellant with the crime of robbery in the first degree. It alleged that on June 16, 1934, the appellant robbed Mattingly Brothers' store located in the city of Macon, Missouri. On November 1, 1934, he was found guilty as charged in the information and his punishment assessed at five years' imprisonment in the State penitentiary. From the judgment and sentence entered in accordance with the verdict he has duly appealed to this court.

It would serve no useful purpose to detail the evidence adduced at the trial as appellant does not challenge its sufficiency, but does contend that he is entitled to a new trial on the grounds that the jurors were not kept together both before and after the case had been finally submitted to them and because of the misconduct of the jurors and the sheriff in charge of them.

Section 3682, Revised Statutes 1929, provides that: "With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court during the trial in all cases of felony, except in capital cases." The record does not show that the prosecuting attorney and the defendant entered into any such agreement, but on the contrary the jury was at all times placed in charge of the sheriff and his deputies. Therefore, this section is not applicable to the case at bar.

Section 3683, Revised Statutes 1929, is as follows:

"When the argument is concluded, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer who, in case of a felony, shall be sworn to keep them together in some private or convenient room or place and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict; and when they have agreed, he shall return them into the court, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations." (Italics ours.)

Section 3734, Revised Statutes 1929, provides that: "The court may grant a new trial for the following causes, or any of them: . . . second, when the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case."

Since the enactment of the above-named section we have consistently ruled, in felony cases, that if the separation or misconduct of the jury took place during the progress of the trial the verdict will be set aside, unless the State affirmatively shows that the jurors were not subject to improper influences. But, if after the case has been submitted to the jury for its determination and before a verdict has been reached, there is an opportunity that improper influence could be used on any juror, that alone will require a new trial, even though it be shown that improper influence was not exercised. [State v. Orrick, 106 Mo. 111, 17 S.W. 176; State v. Howland, 119 Mo. 419, 24 S.W. 1016; State v. Tarwater, 293 Mo. 273, 239 S.W. 480; State v. Connor, 274 S.W. 29; State v. Hayes, 323 Mo. 578, 19 S.W.2d 883; State v. Asbury, 327 Mo. 180, 36 S.W.2d 919; State v. Malone, 333 Mo. 594, 62 S.W.2d 909; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74; State v. Trainer, 336 Mo. 620, 80 S.W.2d 131; State v. Magee, 336 Mo. 1082, 83 S.W.2d 98.]

The record shows that the trial commenced Tuesday, October 30, 1934, at nine A. M., and the case submitted to the jury at eleven-six A. M., Thursday, November 1, 1934.

The appellant's motion for a new trial alleged separation and misconduct of the jury and misconduct of the officers in charge of it, both prior to and after the case was submitted to the jury for its decision. In support thereof, the appellant adduced both oral testimony and affidavits.

That part of the affidavit of Waldo Edwards, an attorney for the appellant relating to the conduct of the jury and the officers in charge of it, after the case was submitted, is as follows:

"After the administration of the solemn oath to the sheriff or bailiff, he took the jury to the wash room in the court house and while they were in the wash room, the sheriff told the jury and the court, who was then on the first floor of the court house, that he was going to take the jurors to see the 'New Zephyr' train that was being exhibited in Macon on that day between the hours of 11:30 and 12:30, and that the judge told him to take that jury back into the court house and to the jury box, and the judge of the court took the bench and told the jury to retire and deliberate and try to reach a verdict in the case; and every juror had his hat with him to go to view the new train; that the sheriff took the jurors to the jury room and said something to them that was not audible to this affiant; that immediately the sheriff came out of the jury room and when in the position of about the middle of the court room, and announced in a loud and sonorous tone, that the jury wanted to go to the Burlington Railroad tracks and see the 'New Zephyr' train; this was objected to by counsel of the defendant at that time, and at all other times, and the court told the sheriff to tell the jury that they could go down to see the train at ten minutes to twelve, and this was objected to by counsel for defendant, and the court announced at the time the jury had a much more important matter in...