Tarkington v. State

• Decision Date: 03 June 1895
• Court: Mississippi Supreme Court
• Parties: WILL TARKINGTON v. THE STATE

17 So. 768

72 Miss. 731

WILL TARKINGTON v. THE STATE

Supreme Court of Mississippi

June 3, 1895

FROM the circuit court of Clay county, HON. C. H. CAMPBELL, Judge.

Appellant has been convicted of murder, and appeals. The facts touching the only question passed upon by the court are stated in the opinion.

Reversed and remanded.

S. G Ivy, Jr., and J. J. McClellan, for appellant.

The separation of a jury in a capital case conclusively vitiates the verdict. Our court repudiates the doctrine that a separation is merely prima facie vicious, and holds that the jury should be kept free from liability to improper influences. Thompson & Merriam on Juries, 368; Hare v State, 4 How., 187; Woods v. State, 43 Miss 364; Russell v. State, 53 Ib., 367; Skates v. State, 64 Ib., 644; Brown v. State, 69 Ib., 398; Cartwright v. State, 71 Ib., 82. It is the same in effect, whether the jury separate and mix with strangers, or strangers are allowed in the jury room.

Frank Johnston, attorney-general, for the state.

It is not shown that any improper influences were used upon the jury. The rule is so clearly and fully defined, and the whole doctrine so well set forth, in Skates v. State, 64 Miss. 644, that it is unnecessary to cite other authorities. There is nothing shown to raise the presumption that improper influences were brought to bear on the jury. The mere presence of the porters in the courtroom does not discredit the verdict. It was necessary that the ordinary duties of the porters and officers should be performed. It is not shown that they tampered with the jury.

Argued orally by J. J. McClellan and S. G. Ivy, Jr., for appellant, and Frank Johnston, attorney-general, for the state.

OPINION

WOODS, J.

The trial of the appellant in the court below was begun on January 22 and concluded on the twenty-fifth of the same month. On the trial W. L. Cromwell, sheriff of the county in which the trial was had, appeared as a witness for the prosecution, and testified to material facts. George Cromwell, a son of the sheriff and his deputy, was also introduced as a witness by the state, and testified to the same facts. J. A. Stacey, another regular deputy sheriff, was likewise a witness on behalf of the state, and testified to other material facts.

On the night before the jury returned their verdict, and after their retirement from the bar for deliberation, the two deputies just named were in the room with the jury, and one of them remained in the room with the jury all night. It seems that during the various recesses of the court in the progress of the trial, the jury was permitted to occupy the courtroom, and on this last night, after the case had been submitted to them, they also occupied the courtroom. On this night there were in the room with the jury nine other persons-the two deputies already mentioned; three other deputies, regular or special, including the bailiff who had been sworn to attend upon the grand jury; the clerk of the circuit court and his deputy, and the two porters who had the care of the courthouse. It does not appear that any of these nine persons had any conversation with the jury, or any of its members, touching the case, beyond a remark addressed by the clerk to the jury to the effect that, if they were likely to agree on a verdict, he would remain and receive it.

The eighth and tenth grounds of the motion for a new trial rest upon the presence with the jury in their retirement to...