Yarber v. State, 37353

• Decision Date: 10 April 1950
• Docket Number: No. 37353,37353
• Parties: YARBER v. STATE.
• Court: Mississippi Supreme Court

Page 596

45 So.2d 596

208 Miss. 806

YARBER v. STATE.

No. 37353.

Supreme Court of Mississippi, in Banc.

April 10, 1950.

Windham & Cunningham, Booneville, for appellant.

Geo. H. Ethridge, Acting Attorney General, R. O. Arrington, Jackson, for appellee.

SMITH, Justice.

One, Strange, had been indicted by the Grand Jury of Prentiss County, and a special venire ordered to try the case. Among the members of this venire was A. L. Rushing. This case revolves around him and the appellant, in connection with the special venire for the trial of Strange.

At the February 1949 term of the circuit court, the district attorney filed an information against appellant, praying that he be cited for constructive contempt of court. The facts alleged therein are: 'That on or about the 23rd day of February, 1949 and at a time when the said Rushing had been drawn and served with process for jury service on said venire that the defendant, Owen Yarber, approached the said A. L. Rushing in Prentiss County, Mississippi, and informed the said Rushing that he understood that Rushing was drawn for jury service in the aforesaid case, that he the said Yarber was interested in Strange's welfare, that he felt that Strange should be acquitted and there requested that the said Rushing if he qualified and was finally selected as a juror to try said cause that he do all that he could to prevent the conviction and punishment of the said Strange; * * *'.

Appellant filed an answer denying the charge, although admitting a conversation with Rushing in which he alleged he said to Rushing merely, 'If, after hearing all the evidence you are not convinced that Strange is guilty of any offense, you ought to stand by that conviction regardless of what the other jurors do.' Appellant alleged further that if this statement were improper, he regretted it, and meant no contempt, or to influence the veniremen or to obstruct justice.

The defendant, 'personally and by his attorney in open court waived his right to a hearing before the court on said charge and agreed that the Judge of the Court may hear and determine said cause in vacation * * *' quoting from the court's order.

At the trial, Rushing testified that appellant came to his home, about twenty-two miles from Booneville, at 9 o'clock at night, after he had retired; that appellant knew he, Rushing, was on the special venire in the Strange case; that he knew and was a friend of Strange, and considered the witness a respectable man; that he wanted the venireman to be as light on Strange as he possibly could; stating that Strange had made a mistake, and was in trouble and for Rushing to be as light on Strange as he possibly could without doing anything he thought he should not do, and that Strange would try to repay Rushing some way or the other. To this Rushing replied, that he did not know whether he would serve on the Strange case or not, but if so, he would...