Wallace v. State

• Decision Date: 09 December 1929
• Docket Number: (No. 39.)
• Citation: 22 S.W.2d 395
• Parties: WALLACE v. STATE.
• Court: Arkansas Supreme Court

22 S.W.2d 395

WALLACE v. STATE.

(No. 39.)

Supreme Court of Arkansas.

December 9, 1929.

Rehearing Denied January 13, 1930.

Appeal from Circuit Court, Woodruff County; W. D. Davenport, Judge.

Bo Wallace was convicted of grand larceny, and he appeals. Affirmed.

Elmo Carl-Lee, of Augusta, for appellant.

Hal L. Norwood, Atty. Gen., and Pat Mehaffy, Asst. Atty. Gen., for the State.

MEHAFFY, J.

The indictment in this case charged the appellant with grand larceny, alleged to have been committed on the 15th day of December, 1928, by unlawfully and feloniously stealing, taking, and carrying away 171 pounds of seed cotton, of the value of $15, and two cotton pick sacks of the value of $1.50, the property of Roger Williams.

Appellant was convicted and sentenced to one year in the penitentiary, and he prosecutes this appeal to reverse said judgment. Appellant, in his motion for a new trial, urges a reversal of the case because one of the jurors left the other eleven of his fellow jurors and appeared before the court and asked the court if he would suspend the sentence during the good behavior, if they found him guilty and fixed his punishment at one year in prison.

In support of his motion for new trial, appellant filed the affidavit of W. R. Mayer, one of the jurors, who testified, in substance, that, after they had deliberated quite a while and the jury were divided, they agreed to send one juror, Sanford Davis, to the court to ascertain if he would suspend the sentence on good behavior if the jury would return the verdict of guilty and fix his punishment at one year and recommend that the sentence be suspended during good behavior; that said juror went to the court and was gone 10 or 15 minutes and came back and said it was all right.

This juror testified that he would not have consented or returned a verdict if he had not been assured that Wallace would not be sentenced but that his sentence would be suspended. He also testified that he felt that the evidence did not warrant conviction at all, but thought this sort of a verdict and suspended sentence would be better for the defendant than to keep him and subject him to the third trial, with its expense and worry.

Also, in support of his motion for a new trial, appellant filed the affidavit of W. J. Dungan, an attorney, who stated that, after the case was submitted to the jury, one of the jurors, Sanford Davis, came from the jury room and approached the court, and said, substantially: "Judge, we can agree on a verdict of guilty and punishment at one year if you will agree to suspend the sentence during good behavior."

It is earnestly insisted by the appellant that this conduct of the juror was improper, and that, because of this misconduct, he should have a new trial.

The statement of the court is that the juror came to him and made the statement, in substance, as detailed by the attorney, and that the court directed the juror to return to the other eleven without instructing him. In other words, when he came and made the statement to the court, the court immediately directed him to go back to the jury room where the other eleven were, and did not give him any instructions or any intimations at all.

It is argued that the juror had to go from one floor to another and pass bystanders, but there is not even a suggestion that he spoke to anybody or that anybody spoke to him either while he was going to the courtroom or going back to the jury room.

In trials of felony cases at common law, it was necessary to keep the jury together in charge of an officer and not to permit them to separate from the time of their being impaneled and sworn, but in this state the matter is regulated by statute.

Section 3187, Crawford & Moses' Dig., reads as follows: "The jurors before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officers," etc.

Section 3190, Crawford & Moses' Dig., provides: "After the cause is submitted to the jury they must be kept together in the charge of the sheriff, in the room provided for them, except during their meals and periods for sleep, unless they be permitted to separate by order of the court," etc.

The statute also provides that certain instructions shall be given to the jury, and this court has repeatedly held that it was within the discretion of the court to keep them together or permit them to separate.

The record is silent in the instant case as to whether the court had made any order at all, and there is no contention that the court had made an order to keep them together. Some courts have held that where, under a statute like ours, the court may keep them together or permit them to separate, if he once makes an order to keep them together it is error to thereafter permit them to separate. However, that question is not involved in this case. There is no contention that any order to keep them together was ever made by the court. There is no contention that the juror that separated talked to anybody or that anybody talked to him during his absence from the other eleven.

Where the court permits the jurors to separate, or where there has been no order keeping them together, the burden rests upon the complaining party to show that prejudice resulted. There is no evidence in the record tending to show that anything was done by the juror or any one else while he was absent from his fellow jurors that resulted in any prejudice to the appellant. Kennedy v. State, 119 Ark. 611,...