Temple v. State

• Decision Date: 30 June 1913
• Docket Number: 16,633
• Citation: 105 Miss. 449,62 So. 429
• Court: Mississippi Supreme Court
• Parties: CLARENCE TEMPLE v. STATE

62 So. 429

105 Miss. 449

CLARENCE TEMPLE v. STATE

No. 16,633

Supreme Court of Mississippi

June 30, 1913

APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.

Clarence Temple was convicted of manslaughter and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

L. A Whittington and J. A. Naul, for appellant.

Geo. H Ethridge, assistant attorney- general, for the state.

Argued orally by J. A. Naul and E. O. Whittington, for appellant and Geo. H. Ethridge, assistant attorney-general, for the state.

OPINION

COOK, J.

Appellant was convicted in the circuit court of Lincoln county of the crime of manslaughter and sentenced to ten years' confinement in the state penitentiary. Deceased was a son of a man of great prominence and wide acquaintance throughout the county, and the father was also an officer of the court trying appellant, and had been such for a number of years.

The homicide resulted from the jealousy of the deceased about the relations of a woman of the underworld, his mistress, with appellant. By the testimony of this woman the state's case was proven; in fact, if her testimony is to believed, the defendant was guilty of the crime of murder. After the organization of the jury the court put them in charge of two bailiffs, specially sworn, and instructed them to keep the jury together and not allow them to separate, and also to prevent any possibility of the jury coming in contact with outside influences. After the organization of the jury the record discloses a melange of irregularity and errors.

First. The father of the deceased, and a witness for the state, over the protest of defendant, was permitted to testify that he had examined the room, the scene of the homicide, and found certain bullet marks in the walls thereof, and that in his opinion the party firing the shots must have been located at a certain place in the room. This opinion of the witness, if believed by the jury, was contradictory of the defendant's evidence, and therefore it must have been prejudicial to his case before the jury. There is no pretense that the witness was an expert in the range of bullets, and in Foster v. State, 70 Miss. 755, 12 So. 822, the testimony of this witness with reference to the range of the bullet and the probable location of the person firing the pistol was held to be error. Speaking of this class of testimony, the court said: "Where, on a murder trial, the relative position of the accused and the deceased, at the time of the killing, is a material inquiry, a medical expert who had made a post mortem examination may testify as to the point of entrance and exit, and the course and range of the ball through the body; but it is error to permit him to state his opinion that a hole in an adjacent wall was within the range, or to state his opinion as to the position of the arm or hand of the deceased when shot, these being conclusions resting in common knowledge and not upon scientific learning."

In total disregard of the instructions of the court, the sheriff, on the first night the jury was out, substituted another man for one of the sworn bailiffs; on the second night both of the sworn bailiffs were temporarily excused by the sheriff, and two other men substituted in their places. This substitution was without the knowledge of the trial court, and was not learned by the judge until after the verdict of the jury was rendered.

While the jury was considering the case, it appears from the testimony of one witness that some person had communication with the jury. This witness testified that he saw a man standing on the ground immediately under the window of the room in which the jury was confined, and he knew that he was in conversation with members of the jury, but was unable to tell what was said in this conversation. In explaining these circumstances, upon the motion for a new trial, the state introduced a witness who testified that while the jury was in the room he went about twenty feet from the window in question, and near the courtyard fence, and from there had spoken to a member of the jury, but had no conversation with him about the case, or about anything else. It is not conclusive that this witness was the party referred to by the witness for the defendant, as, according to the testimony of defendant's witness, the party referred to by him was not at the place where the state's witness says he was when he spoke to a member of the jury.

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