The defendant was convicted of assault and battery with intent to kill and murder, and was sentenced to serve a term of five years in the State penitentiary. On this appeal, he does not challenge the sufficiency of the evidence to amply sustain such conviction, nor does he contend that the trial court committed any error except by its refusal to grant the accused a new trial on the ground that at the close of the evidence, and during the noon recess which intervened before the case was argued and submitted, the bailiff permitted a conversation between a young man from another county and a juror who had been in the military service with him, and which conversation took place under the following circumstances:
This conversation occurred while the juror and his visiting friend were seated on the front row of the seats for spectators in the courtroom, in plain view of the other eleven jurors who were seated in the jury box and the two jury bailiffs. When the conversation began, there was no one else in the courtroom. The jury was awaiting the return of the judge and the attorneys in the case. One of the bailiffs had been requested by this visitor to permit him to converse with this juror about the G.I. Bill of Rights, 38 U.S.C.A., sec. 693 et seq. This permission was granted, and the bailiff stood nearby during a part of the four or five minute conversation in question. While there, the participants were heard by him to begin discussing this Bill of Rights, in pursuance of the permission granted them. They were instructed by the bailiff in the outset not to discuss anything else. *Page 894 The bailiff testified that before the conversation ended, he left the immediate presence of the participants therein and went to a place near the back of the courtroom where some two or three persons, who were interested on behalf of the defendant, had become seated, and that the trial judge "then came in" the courtroom. Therefore, it appears that the bailiff did not hear all of the conversation now complained of.
As to the real purpose for which the visitor desired to converse with the juror the testimony of this bailiff discloses by hearsay evidence, (but which was not objected to and was therefore competent under the decision of Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457, and cases therein cited), that the young man had come from Water Valley, Mississippi, during the forenoon of that day, and had come to the home of the juror, a distance of several miles from the place of the trial, to see him, and had there learned that the juror was at court in the City of Greenwood. That this young man then proceeded to Greenwood, saw the sheriff at about the time the jury was coming downstairs from the courtroom for the noon recess, asked for and was granted permission to shake hands with this juror, and was thereupon advised by the latter that the jury was to be back in the courtroom after the recess hour.
It does not appear that either the visiting young man or the juror sought to have any conversation with each other during the noon recess prior to the jury's return to the courtroom, and not then until they had obtained permission from the bailiff to discuss the matter about which the young man desired some information. Nothing occurred to indicate that they desired or held a secret or confidential conversation. The bailiff departed from where the conversation began, and of his own volition. There is no reason to infer that either of them could anticipate that the bailiff would leave them alone or that they had any desire that he should do so. Moreover, *Page 895 there is no ground upon which to base a well-founded suspicion that any improper influences were used against the defendant in the conversation complained of. It does not appear that the visitor even knew the nature of the proceeding being tried, whether civil or criminal, or that he had ever before heard of either the accused or the victim of his assault, or was acquainted with any person interested either in the prosecution or defense.
Under the foregoing circumstances, the trial judge had no reason to suspect that any improper influence had been used by this young man against the accused. A mere possibility that such influence might have been used on the occasion complained of is not sufficient to justify the setting aside of this conviction. The cases of Sanders v. State, 150 Miss. 296, 116 So. 433, and Turner v. State, 176 Miss. 862, 170 So. 642, and other decisions of this Court have expressly so held. Hence, the trial judge overruled the motion for a new trial under the proof heard thereon.
In the nature of things, there must occur in the course of protracted criminal trials some irregularities, as well as errors, which are prima facie prejudicial to the constitutional right of the accused to a fair and impartial trial, and it becomes necessary during such trials for the judge to pass on certain issues of fact, aside from those for the determination of the jury which involve the guilt or innocence of the accused on the merits, and where it appears to his entire satisfaction from convincing evidence that no prejudice did result from the act in question, he should not set aside a conviction. Only the courts of West Virginia, Idaho and New Hampshire require that the trial judge shall be satisfied beyond a reasonable doubt or to the exclusion of every other reasonable hypothesis that no improper influence has been exerted against the accused.
In the Mississippi case of Hare v. State, 4 How. 187, it appears from the statement of the facts in the case *Page 896 that after the issue had been submitted to the jury, a man by the name of Woodley went into the room unnoticed by the bailiff, and that notwithstanding this intrusion, the bailiff withdrew to obtain water for the jury and left them under the charge of such intruder, and it appears from the bill of exceptions that Woodley conversed with the jurors on the subject of the prisoner's guilt. In that case, Judge Sharkey said that: "Whilst the law is rigidly vigilant in guarding and preserving the purity of jury trials, yet it will not for light or trivial causes, impugn the integrity of juries, or question the solemnity and impartiality of verdicts. But if the verdict be given under circumstances which might conduce to an improper influence, or the natural tendency of which might be to produce bias or corruption, it cannot then be said to be above suspicion; and if it be not, it must fall short of that perfection which the law requires, and which under a more guarded administration, it is capable of producing. It is not necessary that any attempt should be made to bias the minds of the jurors, or that any pernicious influence should be exerted. The door to tampering is to be closed; this is the only security; for if it be left open, it may be predicted with certainty, that the evil consequences will fall some where."
The substance of the foregoing quotation from Hare's case has been brought forward in some of the other earlier cases decided by this Court, such as McQuillen v. State, 8 Smedes M. 587, and Woods v. State, 43 Miss. 364, where the jurors had mingled with the "crowd" under circumstances which not only afforded an opportunity for them to imbibe the prejudice of those in attendance upon the court, but which indicated a strong probability that they would naturally have done so, but it should be kept in mind that what had occurred in these particular cases furnished the occasion for the use of strong language to condemn an injustice done by the incident complained of. Moreover, in the later case of *Page 897 Skates v. State, 64 Miss. 644, 1 So. 843, 60 Am. Rep. 70, Judge Cooper expressly stated that the language of these earlier cases must be interpreted by the circumstances of the cases in which it was used.
And, theretofore, in the case of Green v. State, 59 Miss. 501, Judge Cooper had also very aptly said that: "It is not every act of misconduct on the part of jurors which will entitle a defendant to a new trial, but where such acts are shown, if they are of such character as may have prejudiced the defendant, the presumption is that they did, and it devolves upon the State to establish the fact that such result did not follow. But where all of the facts and circumstances are known, and it appears with reasonable certainty that though there was exposure to influences which might have perverted or corrupted the judgment of the juror, it was not done, then the verdict ought to stand." But, no misconduct on the part of either the juror or the young man who talked to him appears from this record, since they acted with permission of the bailiff, and in the utmost good faith, insofar as the proof discloses, when discussing the G.I. Bill of Rights — a subject which would naturally have been inexhaustible within such a short period of four or five minutes. Nor is it at all unnatural that the young man may have thought that his friend, the juror, might be able to give him the particular information that he may have desired in regard thereto.
The requirement that jurors be kept together in felony cases is not prescribed by any statute of this State. It finds its origin in the early common-law decisions, based upon the law of England, which, in the early days, had announced the rule "that a jury, after the evidence given on the issue, ought to be kept together in some convenient place, without meat or drink fire or candle, . . . and without speech with any, unless it be the bailiff, and with him if they be agreed." Such a rule in modern practice would preclude a physician from conversing with a juror *Page 898 who had become ill, for the purpose of ascertaining a history of his ailment.
Under the modern rule, as announced in 16 R.C.L. 307, et seq., to the effect that "Where there has been separation for a necessary or innocent purpose," the courts do not, as a general rule, set aside a verdict merely because there might possibly have been misconduct. And, it is also there announced that "The presumption of prejudice arising from an improper separation may generally be rebutted by an affirmative showing that the separated jurors were not so communicated with as to injure the defendant." In other words, the prosecution is not required under this rule to prove that a juror has not been communicated with, but merely that he has "not been so communicated with as to injure the defendant." And the question arises as to who is to determine whether he has been "so communicated with as to injure the defendant." The answer is that the question is for the decision of the trial judge, and his finding of fact on such issue should not be disturbed if supported by such substantial evidence as did convince him, and should convince the appellate court, that it is not reasonably probable that undue influence has been exerted. Of course, if it should be manifest on appeal that the decision of the trial judge is clearly wrong, a new trial should be ordered.
The early case of Organ v. State, 26 Miss. 78, tends to sustain the right of the appellant to a new trial, but the later case of Green v. State hereinbefore cited, and the cases of Cartwright v. State, 71 Miss. 82, 14 So. 526, and Carter v. State, 78 Miss. 348, 29 So. 148, and other later decisions, all recognize that the facts of each case are to determine whether or not there has been a mere possibility that undue influence was exerted against the accused, and this is not alone sufficient to justify the setting aside of a conviction. See also the numerous cases cited in the Annotation Note in 24 L.R.A. (N.S.) *Page 899 776, holding that proof that a juror has separated from his fellows in a felony case, and had been conversed with by a third person, or where there has been an opportunity afforded for such a conversation, the presumption is that the defendant had been prejudiced thereby; and that it then becomes incumbent upon the State to rebut such presumption by affirmative proof to the satisfaction of the court that no improper influence has been used against the accused, that is to say, where it is not reasonably probable that such improper influence has been exerted, no new trial should be granted on account of such separation.
We are not unmindful that in the case of Queen v. State,152 Miss. 723, 120 So. 838, 839, the Court said that, "If the juror should separate and should come in contact with people in such way as to make it appear that he has had opportunity to communicate with others, then the verdict would be set aside." However, this language is pure dicta; there had been no communication in that case between the juror and a third person about anything; the conviction was affirmed on the appeal here; and what was said in the opinion about what would be the result if there had been conversation with the juror was a statement not necessary to the decision of the question involved.
We are of the opinion that the action of the trial court in overruling the motion for a new trial was correct, and that the judgment appealed from should be affirmed.
Affirmed.