Weaver v. State, 47128

• Decision Date: 22 January 1973
• Docket Number: No. 47128,47128
• Parties: Wesley WEAVER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 636

272 So.2d 636

Wesley WEAVER v. STATE of Mississippi.

No. 47128.

Supreme Court of Mississippi.

Jan. 22, 1973.

T. N. Gore, Jr., Marks, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

BROOM, Justice:

In the Circuit Court of Quitman County, the appellant, Wesley Weaver, was convicted of a felony, to-wit: Assault and battery with intent to kill. He appeals from said conviction and assigns as error only that the jury which tried him was erroneously allowed to disperse and separate during the trial.

The facts are simple. Before the testimony began, but after completion of jury selection, the following oral instructions were given the jury by the circuit judge prior to allowing the jurors to disperse for a fifteen minute break:

COURT: . . . We are not going to lock up the jury because this is a case less than capital. But, I want to give you these instructions, and these instructions will prevail throughout the trial of this case, so listen very, very carefully. . . . I must extract from you these promises; and these promises must be rigidly followed. You must not at any time discuss this case with anyone, nor permit anyone to discuss this case with you; when you go home during the noon hour or during recess periods, don't even discuss it among yourselves. You shall not deliberate on this case until all the evidence has been presented to you; that is, for the State of Mississippi, for the defendant, until you have heard the instructions of the Court for both sides, and arguments of counsel for both sides. At that point and that point alone, you will then, for the first time, begin to discuss the case among yourselves. Don't discuss the case over the telephone with anybody when you go home; don't discuss it with your husbands, or your wives, or any of your relatives or anybody else. . . . And, these instructions must be rigidly followed. And, if anybody attempts to talk to you about this case at any time, during any recess period or any other time, please convey that to me, and I will deal with that party accordingly. . . . If you will follow those instructions, we will take a fifteen minute break, and be back in fifteen minutes, and we will begin the trial.

Admittedly this took place in open court in the presence of the appellant and counsel who made no objection at the time of such occurrence. Witnesses were then sworn and the rule invoked. Several witnesses then testified for the state. Then the following transpired just prior to a noon recess during which the jurors went their separate ways.

THE COURT: Ladies and gentlemen of the jury, we will take a break for our noon recess. Please remember the instructions I gave you with reference to discussing this case with anybody or having anybody discuss it with you, and also about even discussing it at home. If somebody asks you what you are doing on the jury, or what case you're trying, just say, 'I'm trying a criminal case, and I'm not permitted to talk about it.' Don't try to get anybody's opinion on the case. When you return from the noon hour, we're going to recess until 1:30, and when you get back to the courtroom, do not mingle with the spectators and do not mingle with the witnesses or lawyers or anybody else. Just take your seats where you are seated now, and we will proceed from there. Following the earlier instructions that I gave you and these instructions now we will take a recess until 1:30.

Following the noon recess the jury returned to the jury box and the following transpired:

(CONFERENCE AT BENCH BETWEEN COURT AND ALL COUNSEL, OUT OF THE HEARING OF JURY AND OF THE REPORTER; AFTER THE CONFERENCE, THE FOLLOWING WAS DICTATED INTO THE RECORD AT THE BENCH AND OUT OF THE HEARING OF JURY:

MR. GORE: The defendant at this time moves for a mistrial for the reason that immediately after the acceptance of the jury by both the State and the Defendant, the jury was allowed to disperse and go their separate ways around the courthouse; and for the further reason that prior to the noon recess, the Court allowed the jury to disperse during the lunch hour, and they were not kept together during those two periods of time under the supervision and observation of the bailiff.

COURT: You didn't object to the jury not being sequestered at the time that I made my announcement to the jury after the jury was empanelled and selected by both sides and before the trial of the case was started.

MR. GORE: I did not object at that time because I didn't want the jury to hear me.

COURT: You made all other objections at the bench outside the hearing of the jury, and you could have easily approached the bench and made this objection outside the presence of the jury, but you failed to do so. The jury...