July 12, 1917. The opinion of the Court was delivered by The defendant-appellant was indicted, tried, convicted and sentenced before Judge Peurifoy and a jury at the July term of Court, 1916, for Jasper county. The facts *Page 449 of the case are that the defendant went to Savannah on business, and several persons got him to bring them back some whiskey. He brought the whiskey in two suit cases, and on his arrival at Ridgeland was arrested without a warrant by the sheriff and his deputy, and the two suit cases containing the whiskey were taken from him. One gallon of the whiskey belonged to him and the other to parties who had sent him for it.
Exceptions 3, 4 and 5 complain of error on the part of his Honor in excluding as incompetent and irrelevant evidence that defendant was transporting liquor from Savannah, Ga., for other persons, not more than one gallon for the personal use of any one person, and in refusing to allow defendant's witnesses to testify that this liquor was theirs and that they had employed the defendant to transport it for them, and in refusing to allow the defendant's witnesses to explain possession or ownership of the liquor in excess of one gallon. The sixth exception complains of error in charging the jury that defendant was guilty if he had in his possession more than one gallon of liquor. These exceptions must be sustained.
If the defendant was a private carrier for hire, or if as a favor he brought in for a friend not more than one gallon of liquor for one person's personal use during one calendar month, with no intent to violate the law, then he had the right to do so. In other words, a private person or a private carrier for hire have the same rights and privileges to bring in and transport liquor as a common carrier for hire. The same rules and restrictions apply to a private carrier for hire as a common carrier, no more or less.
The other exceptions complain of error on the part of his Honor in not granting a new trial on the ground that certain large posters condemning liquor traffic were held before the jury by several ladies during the trial or part of it; that the women were in the courthouse and sat directly in front of the jury and on the left *Page 450 of the Judge; that the jurors saw and read the posters. That such a state of facts could exist in a Court of justice is almost inconceivable and be permitted to escape the attention of the officers of the Court and the presiding Judge. Generally nothing escapes the eyes of the Court officials; if one officer fails to see anything improper during the progress of the case, another will see it, and either put a stop to it himself or call the Court's attention to it. The action of the women was highly improper, in that it was an attempt to impede justice, however innocent on their part, and deny to the defendant a fair and impartial trial, guaranteed to him by the law of the land, an attempt to influence a sworn jury to arrive at a verdict improperly, and to be influenced by outside influence, trying the case by manufactured outside public opinion, and not by the facts of the case as developed in evidence and the law of the trial Judge. The parties should have been summarily dealt with. They were in gross contempt of Court and such conduct should not for a moment be overlooked. At the hearing before this Court it was stated that the presiding Judge's attention was not called to this phase of the case until after conviction and motion for a new trial was made. His Honor inquired of the jury then if they were in any manner influenced by these posters. They answered in the negative. His Honor should have set the verdict aside promptly when he found out how an attempt had been made to influence the jury.
There is no doubt that the action on part of the audience and crowd in the Court room during part of the trial was so irregular and improper and was allowed to go unchecked by the officials that the defendant did not get what he was entitled to, a fair, impartial and legal trial.
A new trial must be granted.
MESSRS. JUSTICES HYDRICK and GAGE concur in the opinion of the Court. *Page 451
MR. CHIEF JUSTICE GARY concurs in the result.