State v. Clary

PROVO STY, J.

The sole point presented in this case is as to whether the jury was kept free from contact with the public and from improper influences, the case being capital.

The circumstances of the crime were of a nature to arouse strong public sentiment against the two accused. They had gone to their homes and armed themselves, one with a rifle and the other with a shotgun, and sought out the decedent, and set upon him unawares, and, while one of them was beating him on the head with the rifle, the other had shot him dead. The reputation of the accused having been already not of the best, considerable public excitement attended the trial, which lasted from the morning of Tuesday, July 14th, to some time during the day of Tuesday, July 21st; and, as we gather, the courthouse was crowded during its progress.

While it .was going on, a stranger stood near the jury and had conversed with one of the jurors before his presence was discovered. The jury were marched several times to and from the hotel and to and from the picture shows along the more or less crowded sidewalks, with no precaution taken against their contact with the public, except their being accompanied by two officers. At their meals at the hotel they seem to have been allowed to converse freely with the waitresses; and the situation was such that conversation at the other tables, even in an ordinary tone of voice, could easily be heard by them. Packages and valises with no, or simply more or less perfunctory, examination of their, contents,. were allowed to be given in to them. All this, of itself, leaves the impartial mind in doubt whether the rule for the segregation and isolation of the jury was not lost sight of fatally to the verdict, in a case of this kind, when the heinousness of the crime and aroused public sentiment against the accused made a strict and careful observance of the rule doubly to be desired; but one other imprudence which we now proceed to mention leaves no doubt that the said rule was fatally departed from. The jury were taken to the picture shows on two occasions at night, and sat there in ,the ordinary rows of chairs with the rows in front and back of them occupied, in the obscurity which usually prevails in places of that kind. Thereby an opportunity was afforded to the public for access to them, and this is fatal to the verdict. “They were accessible; misconduct is presumed.” State v. Warren, 43 La. Ann. 828, 9 South. 559; State v. Moss, 47 La. Ann. 1514, 18 South. 507. See, also, State v. Craighead, 114 La. 84, 38 South. 28.

The verdict and sentence are therefore set aside, and the case is remanded for trial according to law.