Summary
In Cothern v. State, 217 Miss. 146, 63 So.2d 820 (1953), the jury, after deliberating for some time, asked the bailiff to summon the trial judge.
Summary of this case from Martin v. StateOpinion
No. 38692.
April 6, 1953.
1. Trial — oral instructions, reversible error.
Under the statute the trial judge cannot give oral instructions to the jury and when oral instructions are so given, the judgment must be reversed and a new trial granted. Sec. 1530, Code 1942.
Headnote as approved by Kyle, J.
APPEAL from the circuit court of Lawrence County; SEBE DALE, Judge.
Patterson Patterson and Roach Jones, for appellant.
In the case of Collins v. State, 99 Miss. 50, 51, this Court said:
"The common law, since trial by jury was secured by Magna Charta, the twenty-sixth section of our Constitution, and various criminal statutes of this state, guarantee to a person charged with a crime a fair trial by an impartial jury. This guaranty is to every person, high or low, rich or poor, guilty, or innocent. The Court will not stop to inquire whether the jury was actually influenced by the conduct of the judge. All the authorities hold that if they were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption. It is a conclusive presumption."
Our courts have said that a jury cannot be hurried nor told that they must stay until they reach a verdict of guilty or not guilty, whether it be done by the judge or other parties and that whatever influence is exercised will be believed to have prejudiced the accused's rights. Green v. State, 59 Miss. 501; Brown v. State, 69 Miss. 399.
In the case of Jones v. State, 52 So. 793, the Court said that there is no such thing in our law as "harmless error," when the Constitution's guarantee of trial by an impartial jury is violated.
It is a well known fact that jurors are always on the lookout for the leaning of the court one way or the other, as was said in the case of Johnson v. State, 105 So. 852, "The trial judge cannot be too careful and guarded in his language and conduct in the presence of the jury. The trial judges have, and deserve to have, great influence with the juries."
We respectfully further submit that the court could give no oral instructions to the jury, as it did in this case. There are numerous decisions on this question and we herewith submit that the case of Gilbert v. State, 29 So. 477-478, together with others cited, is a case in point and is almost on "all fours."
We call the Court's attention to the case of Westbrook v. State, 163 So. 338. Earl Westbrook was convicted on manslaughter and appealed to this Court. This Court reversed the decision of the lower court because the trial court gave to the jury further oral instructions. The facts in the Westbrook case disclosed that "after the jury had retired to consider their verdict and had not reported for about eighteen hours it was called into the courtroom by the trial judge and asked if it had reached a verdict in the case. One of the jurors in response to the question replied, "Some of the members of the jury are not willing to impose a life sentence and we would like to know if we can place on a lighter sentence, and if so, I think we can reach a verdict." Thereupon the trial judge made the following statement, "I cannot say anything, except that the Supreme Court of Mississippi had held that you might render a verdict of manslaughter, if that is your verdict." This question and answer were promptly objected to by the defendant, was overruled by the trial judge, and a bill of exceptions thereto duly taken and signed by the judge. In reversing the case the Court said: "This oral instruction given by the judge to the jury is bound by Section 586 of the Code of 1930 and is fatal herein and must cause the reversal of this case." In its opinion in that case the Court cited the case of Gilbert v. State, supra.
J.T. Patterson, Assistant Attorney General, for appellee.
Appellant's final contention is that the trial court should have granted appellant a new trial on account of the conduct of the trial judge in answering questions propounded to the trial judge by the jury after the jury had received the case and retired to consider their verdict.
Counsel for appellant submitted a special bill of exceptions.
The trial court dictated into the record a statement in response to the special bill of exceptions. The statement of the trial judge fully covers the occurrence complained of and we shall not restate same here. There is nothing in the facts relating to the conduct of the trial judge in the case at bar tending to show that the judge exercised undue influence upon the jury and thereby caused the appellant to be deprived of a fair and impartial trial. In the cases relied upon by the appellant, in each instance it is shown that the conduct of the trial judge probably influenced the jury in arriving at their verdict. In the case at bar it is clearly shown that the trial judge made no effort whatsoever to influence the jury in arriving at a verdict. The judge merely answered two questions propounded to him by the jury. At the request of the jury, the judge gave a definition of grand larceny, and at the further request of the jury, the judge informed the jury as to the maximum penalty for grand larceny.
If such was error, which we do not concede, it was harmless error, and under Rule Eleven of this Court this case should not be reversed therefor.
The appellant, Herman Cothern, was indicted with Billy Joe Burnett, Charles Greer and Daniel Brister on a charge of burglary for breaking and entering the storehouse of Will J. Rutland and taking, stealing and carrying away certain goods and merchandise described in the indictment. The appellant was granted a severance. The other defendants entered pleas of guilty and testified as witnesses for the State. The appellant was tried and convicted of the crime of grand larceny, and was sentenced to the state penitentiary for a term of one year. From that judgment he prosecutes this appeal.
The appellant's attorneys argue several grounds for reversal on this appeal. But in view of the fact that the judgment of the lower court must be reversed on account of the oral instructions given by the court to the jury after the jury had retired to consider its verdict, it will not be necessary to discuss in detail the evidence or the other errors assigned as grounds for reversal on this appeal.
The court instructed the jury for the State that, if they believed beyond every reasonable doubt that the defendant was guilty as charged in the indictment, the jury might find the defendant guilty of (1) burglary and grand larceny, as charged in the indictment, or (2) burglary, or (3) grand larceny.
The record shows that sometime after the jury had retired to the jury room there was a knock on the door of the jury room; the bailiff opened the door; and a juror stated to the bailiff that the jurors desired to ask the judge a question. The judge went to the jury room door and asked, "What do you want?" A juror replied, "We want a definition," and the juror stated that they wanted a definition of "grand larceny." The judge replied: "The unlawful and felonious taking, stealing, and carrying away the personal property of another of a value of more than $25.00." The juror then asked what the maximum penalty was, and the judge replied, "Not to exceed five years." The juror then asked another question about "burglary," and the judge responded to that question by saying to the jurors, "You have proper instructions, read them." The defendant's attorneys were not present in the courtroom when the above mentioned colloquy between the judge and the jurors took place, although they were present in the courthouse. Upon being informed about the matter, the appellant's attorneys requested a special bill of exceptions to show the facts concerning the jurors' request and the judge's reply. A bill of exceptions was prepared and was incorporated in the record, along with the judge's statement of the facts. The appellant's attorneys filed a motion for a new trial and assigned as error the action of the court in giving the above mentioned oral instructions to the jury, and the point has been argued here as grounds for reversal on this appeal.
This Court has held that under Section 1530, Code of 1942, (Hn 1) the judge cannot give oral instructions to the jury, and that the giving of such oral instructions constitutes reversible error. Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Edwards v. State, 47 Miss. 581; Stewart v. State, 50 Miss. 587; Watkins v. State, 60 Miss. 323; Gilbert v. State, 78 Miss. 300, 29 So. 477; Westbrook v. State, 174 Miss. 52, 163 So. 838. See also Alexander, Mississippi Jury Instructions, Section 4. The judgment of the lower court must therefore be reversed and a new trial granted because of the giving of the above mentioned oral instructions to the jury.
In view of the fact that the case must be reversed for the reason stated above, we shall not undertake to comment on the error alleged to have been committed by the lower court in admitting evidence that was objected to during the trial or in granting the State's instruction No. 3.
No point has been made in the appellant's brief on the omission of the words "from the evidence" in three of the State's instructions. Since there must be a new trial, however, we call attention to the omission, so that the defect may not appear in the instructions requested when the case is tried again. This Court has held in several cases that the jury's belief that the defendant is guilty must be based upon the evidence, and that the instructions should so state. Godwin v. State, 73 Miss. 873, 19 So. 712; Butler v. State, 83 Miss. 437, 35 So. 569; Powers et al. v. State, 168 Miss. 541, 151 So. 730; Butler v. State, 177 Miss. 91, 170 So. 148. Whether the omission of the words "from the evidence" constitutes reversible error in a case of this kind may depend to some extent upon the facts of the particular case and the curative effect of other instructions. Alexander, Mississippi Jury Instructions, Section 58. But in the case of Butler v. State, 83 Miss. 437, 35 So. 569, the Court held that the instruction complained of in that case was bad and that the words "from the evidence" were absolutely necessary under the facts in that case. And a similar holding was announced in the case of Butler v. State, 177 Miss. 91, 170 So. 148.
For the error in giving the oral instructions mentioned above the judgment of the lower court is reversed and the case is remanded.
Reversed and remanded.
McGehee, C.J., and Hall, Holmes and Lotterhos, JJ., concur.