Sprinkle v. State

Anderson, J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of the murder of one Louis Faye, and, the jury having disagreed as to the punishment, he was by the court sentenced to the penitentiary for life. From which judgment this appeal is prosecuted.

The uncontradicted testimony in the case shows that the deceased, Faye, had been for several hours at the home of a woman by the name of Juanita Thompson; that during the early part of the evening a man by the name of Cruthirds came to this home and was ordered to leave by Faye, who was armed with a pistol. The testimony is conflicting as to whether Faye unintentionally shot off his pistol, or shot at Cruthirds, but at any rate the pistol was fired, and Cruthirds left the house. Cruthirds then called at the place of business of the appellant, who was city marshal of Pass Christian, and, according to the testimony of appellant Cruthirds informed him that Faye had shot at him, and he wanted appellant to arrest Faye. "Whereupon the appellant and Cruthirds proceeded to the home of Juanita Thompson. The testimony relating to the shooting is conflicting. The dying-declaration of Faye was to the effect that he was getting-ready to leave the Thompson home, and had picked up his pistol, and was going out to put it in his car, and that when he was on the front porch the appellant stepped up on the porch and shot him six times before he could say anything; that appellant said nothing to him, but stepped up on the porch and began shooting; that he did not attempt to shoot appellant.

The evidence on behalf of appellant was to the effect that he demanded of Faye that he consider himself under arrest for shooting- at Cruthirds, when Faye presented his pistol toward appellant as if to shoot him, and thereupon appellant shot deceased. In other words, appellant’s evidence made a case of self-defense while the evidence of the state made a case of murder. The dying-declaration of the deceased was testified to by the district attorney to whom it was made. He testified further that Faye’s dying declaration was taken down in shorthand by a stenographer, transcribed, and given to him, and that at the time he was testifying- he had this copy in liis pocket. He was asked by appellant’s attorney if Faye’s statement was not elicited by the witness asking him leading questions, tbe reply to which was, he thought not. Appellant’s attorney thereupon requested the district attorney to let him see the written statement. This request was refused, whereupon appellant moved the court to compel the district attorney to allow him to see the statement, which motion was overruled. The stenographer who took down and transcribed the statement testified that it was correctly taken down and trans-scribed. Appellant then again moved the court to require the district attorney to furnish him the statement. The motion was again overruled. This action of .the court is assigned as error. We are of opinion that the court should have sustained the motion and allowed appellant’s attorney to examine the statement for use in cross-examination as well as evidence if competent and relevant. The statement was not a private paper in the ordinary sense belonging to the district attorney. It was procured in his official capacity for the purpose of aiding him in the prosecution of appellant. It is true it was not a public document or record in the usual sense. However, it had a bearing on the question of the guilt of appellant. The district attorney admitted that the statement so taken and transcribed was substantially correct. With this paper before him appellant’s attorney might have been able to convince the jury that the testimony of the district attorney was inaccurrate in some material respect.

On motion for a new trial the following facts were shown by members of the jury who convicted appellant. Arguments in the case were concluded at night. The following morning, while the jury were at breakfast at a cafe, two of the jurors bought copies of the Times-Picayune purporting to contain an account of the trial. These newspapers were taken into the jury room. We now quote from the testimony of one of the jurors:

“Before those papers were brought there were ten for conviction and two for acquittal, and we came to our room, upstairs and talked over the matter a little while, and then it was eleven to one and that was before anything was said about the newspapers. When it stood eleven to one this juror read the paper before he decided on his verdict. After he got through reading it we took another vote on our verdict. ’ ’

The article begins on the first page of the paper, it is headed:

“Sprinkle laughs at murder trial; fate.in balance.”

The latter part of it reads as follows:

“Sprinkle has figured conspicuously in the; court records of Harrison county for the last fifteen months. He first sprang into notoriety when he was charged by the Sellier Brothers with hi-jacking a cargo of liquor valued at fifty thousand dollars from the Mary K off Henderson Point in April of 1923. He was next charged with killing a negro, whom he claimed he was trying to place under arrest and was acquitted on the plea of self-defense, and this was followed not long afterward by the fatal shpoting of Faye.

“Mass meetings have been held at Pass Christian to remove Sprinkle from office and the mayor and board of aldermen have sought by legal means to relieve him of his commission, but without success. His salary was at one time greatly reduced, but he still held on. Having-been elected by the people, it is contended that he cannot be removed from office until he has been convicted of crime. ’ ’

In this article the jury were informed of several matters about which testimony could not have been introduced, namely, of the appellant’s being a conspicuous figure in the court records of Harrison county, also of his being charged with hi-jacking a cargo of liquor. We understand that the common term “hi-jacking” means the robbery of one bootlegger by another. Also of his killing a negro and pleading self-defense, and also of mass meetings by the citizens of Pass Christian in an effort to remove him from the office of city marshal.

There is no difference between the jury getting this information from a newspaper and getting it from the testimony of witnesses. This was incompetent testimony thrown into the balance, obtained by the jury, probably innocently, though not lawfully. This case comes squarely within the rule announced in the case of Cartwright v. State, 71 Miss. 82, 14 So. 526, from which opinion we quote the following:

“This method of communicating to and impressing upon the jury, or any member of it, the opinions of others is open to the same condemnation which would be visited upon oral expressions of opinion touching the defendant, injected into the body of the jury by some designing intermeddler. We can see no difference, unless in degree. . . . We know of no reported case in which an outside person has been shown to have talked with the jury, or a member of it, concerning the accused when on trial for a high crime, and especially to have talked unfavorably to and with the jury of the accused, in which the verdict has not been set aside. It seems to us impossible to distinguish between the mischief done by oral and written or printed communications. In every instance in which improper influences have been brought to bear upon the jury there will arise the fear that the accused has not had that fair and impartial trial to which he was entitled.”

Before reading this article one of the jurors was for acquittal; almost immediately after reading it he voted for conviction.

The attorney-general contends, however, that the members of the jury were incompetent to prove the purchase and consideration by them of the newspapers containing the article above referred to. He argues that the effect of their testimony was to impeach their own verdict. It is true beyond question that jurors cannot impeach their own verdict. Public policy forbids that a matter resting' in the personal consciousness of the jurors should be received to overthrow their verdict. Being personal, such a matter is beyond the reach of other testimony. It gives to the secret thoughts of the jurors the power to disturb their expressed conclusion in their verdict. Its tendency is to produce bad faith on the part of jurors. Therefore jurors will not be permitted on a motion for a new trial to give evidence as to what influenced their verdict. But testimony by jurors as to the misconduct of others in their presence or hearing—testimony as to outside influences brought to bear upon them—does not fall within that principle. They will not be heard to give evidence as to their own misconduct, but they will he heard to give evidence as to the misconduct of others which is calculated to have a bearing on their verdict. They will not he permitted to testify as'to the effect on their verdict of such outside influences, but they will be permitted to testify as to the fact of such influences. This position is amply sustained by authorities both in this state and elsewhere. Nelms v. State, 13 Smedes & M. 500, 53 Am. Dec. 94; Shaw v. State, 79 Miss. 577, 31 So. 209; Mattox v. U. S., 146 U. S. 153, 13 S. Ct. 50, 36 L. Ed. 917; Perry v. Bailey, 12 Kan. 539, 545; Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49; 4 Wigmore on Evidence, p. 3285. It follows from these views that the jurors were competent to testify to the reading by members of the jury of the newspaper article in question, but were not competent to testify as to the effect thereof upon their verdict. Appellant’s motion for a new trial should have been sustained.

On the objection of the state the trial court excluded testimony offered by appellant to the effect that deceased had the reputation of habitually going armed, and also a bad reputation for peace and such character was known to appellant. In a case like this where the question is whether the deceased or the slayer is the aggressor such evidence should be received. Moriarty v. State, 62 Miss. 654; King v. State, 65 Miss. 576, 5 So. 97, 7 Am. St. Rep. 681.

Error is assigned to the giving of certain of the state’s 'instructions. , Two of these instructions are inaccurate and incomplete, but their defects were cured by the instructions for appellant.

We find no foundation in the record for the other assignments of errors.

Reversed and remcmded.