Wade v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: Wade v. State, 155 Miss. 648, 124 So. 803 (Miss. 1929)
• Decision Date: 09 December 1929
• Docket Number: 28102
• Parties: WADE v. STATE

124 So. 803

155 Miss. 648

WADE v. STATE

No. 28102

Supreme Court of Mississippi

December 9, 1929

Division B

APPEAL from circuit court of Sharkey county, HON. E. L. BRIEN Judge.

Preston Wade was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Thames & Thames, of Vicksburg, and M. Ney Williams, of Raymond, for appellant.

Appellant was entitled to a verdict from the jury free from the influence of the outside world. When the judge made it known to these twelve men on Saturday afternoon that if a verdict was not forthcoming almost immediately, that he would adjourn court until the following Monday morning whereupon a verdict was almost immediately reached, such verdict was not a free and uninfluenced verdict of the jury.

Senior et al. v. Brogan, 66 Miss. 178, 6 So. 649.

Hardy R. Stone, Assistant Attorney-General, for the state.

The courts of Mississippi are not in session on Sunday, and the court in adjourning from Saturday until Monday was strictly within its rights. The jury did not and was not under any obligation to return a verdict until the following Monday and, as the facts in this case show, this jury did not return a verdict until some thirty or forty minutes after the court had adjourned.

Argued orally by Jas. D. Thames, for appellant.

OPINION

Griffith, J.

Appellant was convicted in the circuit court of Sharkey county of murder, and, the jury having returned a verdict fixing the penalty at life imprisonment, the sentence pronounced was in accord therewith.

The case is made solely on circumstantial evidence, and, while the proof would be held sufficient, if there were no other question in the case, we must say that there are some features in the evidence which may well have given a conscientious juror deep concern as to what his verdict should properly be. There is therefore presented a case wherein this court should be well satisfied, and should be able to rest with entire confidence on the record that the result has been the untrammelled, free, and deliberate verdict of every one of the twelve men who composed the jury, uninfluenced by any avoidable extraneous considerations or improper pressure of events. As said in Lamar v. State, 64 Miss. 687, 2 So. 12, 14, and in Green v. State, 97 Miss. 834, 53 So. 415: "Twelve men, elected, impaneled, and sworn to try the issue joined, must concur in a verdict of guilty before the humblest can by our law be deprived of his liberty; and such is the jealousy with which trial by jury is guarded that, when it is made to appear that anything has occurred which may have improperly influenced the action of the jury, the accused will be granted a new trial, although he may appear to be ever so guilty, because it may be said that his guilt has not been ascertained in the manner prescribed by law, and every one is to be judged by the law."

There are two special bills of exceptions as follows:

"The above-styled case was submitted to the jury impaneled to try it at ten o'clock P. M. March 15, and the jury was instructed by the court to retire and consider their verdict. The jury retired, and after deliberating a short while was locked up on orders of the court for the night. At the reconvening of court at nine o'clock March 16, the jury had not reached a verdict. They remained in their room deliberating on the case until 3:55 P. M. on March 16 the following day, when the court directed the jury at their request, to make a report, whereupon the jury returned in open court accompanied by their bailiffs, whereupon the court asked the jury if they had agreed as to a verdict, to which they replied they had not. One of the jurors stated they were trying to reach a verdict and in answer to a question if they did not think they could agree one of them said 'I don't know,' whereupon the court stated to them that if they were trying he thought maybe they might reach a verdict, thereupon he looked at his watch and said he was going home this evening, that that did not mean he was going to adjourn court, that he had plenty of time and court would not be reopened until the Monday morning following. He stated he was not telling them to find a verdict but he would let them go back and try again, and after making this statement to the jury the court directed that they retire to their room and further consider their verdict, to which action of the court the defendant by his counsel, in open court, excepted and presents this his special bill of exceptions to such action and statement to said jury."

"Now comes the defendant by attorneys and for a special bill of exceptions shows to the court that after the happenings and occurrences set out in the first bill of exceptions, and the jury had been directed by the court to retire to their room and further consider their verdict as shown by the first bill of exceptions, that in a short while, a bailiff attending the jury returned in open court and informed the court that the jury stated they could not reach a verdict this afternoon, which was Saturday, March 16th. The court thereupon stated, that was all right. In a short while, possibly thirty minutes after the bailiff had so stated, which was about four-thirty Saturday afternoon, the court notified the attorneys for defendant and the officers that he adjourned court until nine o'clock Monday morning, March 18th, and thereupon he repaired to the hotel, which is approximately one hundred fifty feet from the courthouse, and got in his automobile, and left Rolling Fork, in Sharkey county. That the hotel and the car in which the Judge left Rolling Fork were in plain view of the courthouse and the room in which the jury was deliberating. That about ten minutes after the judge had left as aforesaid, one of the bailiffs in charge of the jury called to the defense counsel, who was also leaving the same hotel, and informed him that the jury had reached a verdict, and the county attorney and the sheriff rushed over to counsel for defendant and gave him the same information as aforesaid. That the sheriff undertook to stop the Judge enroute to Vicksburg, in Warren county, fifty miles away, but as counsel for defense had gone and had not met the court, who had not returned to receive the verdict after having been notified at Cary, eight miles south of Rolling Fork, that said verdict had been reached and said Judge proceeded to Vicksburg and did not re-open court until nine o'clock Monday morning, March 18th, to which action of the court the defendant hereby excepts and offers this his special bill of exceptions."

The question presented by said bills has often been, in various forms, before this court. Reviewing those that may be classed as the later cases, we find them to be thus briefly stated:

In Vicksburg Bank v. Moss, 63 Miss. 74, a civil case, the jury retired to consider of their verdict about three o'clock P. M. Saturday. About four o'clock the bailiff announced to the court that the jury had not agreed, whereupon the court informed them, through the bailiff, that they must remain together until they agreed, and, if they did not agree by nine o'clock P. M., they would have to remain in the jury room, as the court would then adjourn until Monday. About half-past five o'clock the jury returned a verdict. The court said: "The communication had with the jury, after they retired to consider of their verdict, was an irregularity not to be encouraged. According to some authorities, it would vitiate the verdict, but we are unable to see how appellant was prejudiced by the occurrence. . . . The facts that the jury deliberated about an hour and a half after the communication was made to them, and that they agreed and returned their verdict into court several hours before the time at which it was suggested the court would adjourn, show that they did not act hastily, and were not unduly influenced by the communication."

A case somewhat similar to the above on the facts is Wiltcher v State, 99 Miss. 374, 54 So. 726. The case was finally submitted to the jury late Friday evening. Some time late on Saturday afternoon the jury sent word to the judge that they were "hopelessly hung," and asked the permission that they be allowed "to take a walk on Sunday morning and evening." The judge sent word through the bailiff granting the permission requested, and the further word that he would remain within call until nine o'clock P. M. Saturday, and would receive a verdict if brought in by that hour, after which he would go to his home in another county, and would not be back until Monday morning. The jury reported at nine o'clock that they were ready with a verdict, but, the judge having then departed, the verdict was not delivered until Monday morning. The court declined to reverse the case on the showing made. This case might, without a mature consideration of it, be thought to be in strong point against the present appellant, but it will be observed that in the said case just cited the jury had already become reconciled to the necessity of...