Thomas v. State

• Decision Date: 17 February 1913
• Docket Number: 16,390
• Citation: 60 So. 781,103 Miss. 800
• Court: Mississippi Supreme Court
• Parties: GEORGE W. THOMAS v. STATE

60 So. 781

103 Miss. 800

GEORGE W. THOMAS v. STATE

No. 16,390

Supreme Court of Mississippi

February 17, 1913

APPEAL from the circuit court of Sunflower county, HON. MONROE MCCLURG, Judge.

Geo. W Thomas was convicted of embezzlement and appeals.

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

Affirmed.

S. F Davis, attorney for appellant.

It was error on the part of the court below to permit Marshall Burnett, a witness on behalf of the state, to testify after he had remained in the court room during the examination of the defendant. The rule had been invoked and the witness should have been excluded. It was error on the part of the court below to refuse instruction No. 4 asked on behalf of the defendant. This instruction stated the law applicable in this cause, and should have been given. The whole evidence in this case is not sufficient to support the verdict.

It was error on the part of the court below to overrule defendant's motion to exclude the evidence by the state when they had rested their case. The indictment alleges that the defendant embezzled seventy dollars which had come into his hands as guardian of one Henry Jamerson, but there was no proof of any kind offered by the state to show that the seventy dollars alleged to have been embezzled by the defendant was paid out of any trust fund which he had belonging to the said Henry Jamerson, but to the contrary all of the proof offered by the state shows clearly that the defendant was guardian for both Henry Jamerson and James Jamerson, and that he had certain funds belonging to one or both of these minors on deposit in the Delta Pennie Savings Bank, to his credit as guardian, but the state offered no proof whatever to show out of what particular fund the seventy dollar check offered in evidence was paid, whether out of funds belonging to Henry Jamerson or James Jamerson. The ownership of this seventy dollars was a material allegation in the indictment, and the indictment alleges it to belong to Henry Jamerson, but the proof wholly fails to show whether it belongs to Henry Jamerson, James Jamerson or to James and Henry Jamerson jointly.

I think the law as announced by this court in the case of Polklinghorne v. State, 7 So. 347, and the case of McDowell v. State, 8 So. 508, applies in this case and for the reasons therein given, this case should be reversed.

Frank Johnston, assistant attorney-general, for the state.

It is discretionary with the trial court to permit a witness placed under the rule, but who violates it, to testify, citing numerous decisions, among them Taylor v. State, 30 So. 657.

The doctrine or rule announced in Sartorius v. State, 24 Miss. 602, is as follows: "Where the witnesses both for the state and the prisoner, after empaneling of the jury, have been ordered to leave the court room during the examination, and one of them disobeys the instruction, and hears the whole, or any part of the testimony given by the witnesses, it is a question within the discretion of the court of original jurisdiction, to allow such witness to testify in the case or not."

This court held in John Smith et al. v. State, 61 Miss. 754: "Allowing a witness to be examined who remained in the room while all the others are under the rule is a matter wholly within the discretion of the court and is not assignable as error."

In Taylor v. State, 30 So. 652: "Where one of the state's witnesses remained in the court room during the examination of the other witnesses, in violation of an order of exclusion, permitting him to testify thereafter was a matter within the discretion of the court."

It is next contended by counsel for appellant that the court erred in refusing instruction number 4 asked by defendant. That instruction is as follows: "The court instructs the jury that it is the duty of each individual juror to make up his verdict in this case for himself, and that if any member of the jury, after having duly considered all the evidence in this case, and after free consultation with his fellow jurors, should entertain a reasonable doubt of the defendant's guilt as charged in the indictment, it is his duty not to surrender his own convictions simply because the other jurors may entertain a different opinion." This instruction is fundamentally unsound, because the court cannot instruct a juror as to the workings of his own mind, nor as to the relative values of opinions. It is the juror's province strictly to judge whether or not his opinion is valuable or valueless, and whether it should yield to the more logical and well-founded conclusions of others. It would be a solecism to say that one juror might not argue with another in the jury room, using all the legitimate means of reasoning to prove a point, and that the district attorney or the counsel for appellant can argue with the juror before he retires to the jury room to consider of his verdict. The principle is the same. Of course, it is not supposed that eleven jurors could use threats, or means of intimidation, in the jury room, in order to obtain a change of mind of one lone juror.

Counsel however, does not urge his objection by the citation of any authorities or decisions on this point, I presume for the...