Wilkerson v. State

• Decision Date: 21 January 1901
• Citation: 78 Miss. 356,29 So. 170
• Court: Mississippi Supreme Court
• Parties: JOHN WILKERSON v. STATE OF MISSISSIPPI

29 So. 170

78 Miss. 356

JOHN WILKERSON v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 21, 1901

FROM the circuit court of Marshall county. HON. S. M. STEPHENS Judge.

Wilkerson appellant, was indicted, tried, and convicted in the court below and sentenced to the penitentiary. He appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Fant. &amp Fant, for appellant.

It was erroneous not to set aside the verdict, when it was proved that Ponds, the bailiff, had been taken into the confidence of the jury in regard to their verdict, and that a question of law had been left to his decision, by common consent of the jury, and an agreement made that they should abide by his decision. The bailiff is prohibited by law from having any conversation with the jury after the case had been put into their hands. Code 1892, § 799. The submitting of the question of law to the bailiff rendered the verdict not the verdict of the jury, but the verdict of the jury assisted by the bailiff. Even in a civil case such conduct of the bailiff renders the verdict void, and a fortiori, it would render a verdict in a criminal case void. Barnett v. Eaton, 62 Miss. 768; Iron Works v. Tappan, 56 Miss. 659. By § 732, code of 1892, it is the province of the court alone to instruct the jury as to questions of law, and that, too, only at the request of one side or the other of the case, so manifestly this attempt at instructing is a fatal error, especially as the instruction was incorrect and a misstatement of the law. Bangs v. State, 61 Mich. 363.

Monroe McClurg, attorney-general, for appellee.

Bailiff Ponds expressed no opinion as to the guilt or innocence of the accused upon any proposition. In Barnett v. 768, the bailiff was a partisan "and took Eaton, 62 Miss. part in their deliberations." Skates v. State, 64 Miss. 644; Brown v. State, 69 Miss. 398. Iron Works v. Tappan, 56 Miss. 659, has no bearing on the case. Bang v. State, 61 Miss. 363, simply holds that it was not error to refuse to permit law books read to the jury, as the law must come from the court by written instruction requested. Counsel asks too much of this court in requesting it to construe the brief conversation of a single juror with the bailiff as an instruction to the jury.

OPINION

TERRAL, J.

The appellant was indicted in the circuit court of Marshall county for burglary and grand larceny, and was convicted of burglary and petit larceny, and was sentenced to the penitentiary for one year. From this judgment he appeals. The action of the court upon the evidence and the instructions is assigned for error, but upon the whole case it is so clearly right that the defendant is left no room to complain in that behalf. He further complains of the trial because of the conduct of one of the bailiffs in charge of the jury which convicted him. In regard to this matter it was shown that Will Bond and Clayton Humphreys were the sworn bailiffs in charge of the jury, and that about an hour and a half after the case had been submitted to the jury one of the jury opened the door and asked Bond, the bailiff, the difference between burglary and larceny and burglary and petit larceny and Bond replied that the first would send the prisoner to the penitentiary, and the other would send him to the county farm; that the juror reported to his fellows what had occurred and what the bailiff said; and that immediately they made up their verdict. The question therefore presented is, what was the probable effect of the statement made by Bond to the jury? Was it wrongful and hurtful? Did it tend to affect their finding? In the trial of capital cases it is the rule and practice to swear the bailiffs who attend the jury, specifically, inter alia, that they will keep the jury together, and will...