Summary
In Turner v. State, 176 Miss. 862, 170 So. 642, 643, a prosecution for assault and battery with intent to murder, one juror separated from his fellows and walked about two blocks to a restaurant where he purchased lunches, but he was accompanied by the deputy sheriff and communicated with no one other than the officer.
Summary of this case from Grimsley v. StateOpinion
No. 32480.
November 16, 1936.
1. CRIMINAL LAW.
Voluntary offer of compromise is admissible in criminal cases.
2. CRIMINAL LAW.
In prosecution for assault with intent to murder, admission of testimony that defendant, after case was in court, voluntarily offered to pay physician and hospital bills of person alleged to have been assaulted if such person would let the matter drop held not error.
3. HOMICIDE.
In prosecution for assault with intent to murder, exclusion of testimony of defendant's wife that immediately after prior alleged difficulty between defendant and assaulted person in which defendant was cut with knife, such person came into house with bloody knife in his hand and washed blood off knife and off his hands held not reversible error, where defendant without objection was permitted to show same fact by another witness.
4. CRIMINAL LAW.
Mere possibility that juror has been exposed to outside influences is not sufficient to vitiate verdict.
5. CRIMINAL LAW.
Juror's separation from other jurors to go to restaurant two blocks away to purchase lunches did not vitiate verdict, where juror was accompanied by deputy sheriff and had no communication with any one but deputy.
APPEAL from the circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
J.W.P. Boggan, of Tupelo, for appellant.
The appellant contends that the court should have allowed Mrs. Joe Turner, the wife of appellant to testify that on a former occasion when Joe Turner claimed that his throat had been cut by Rodney Howell, that said Howell immediately came into the house and washed blood off his hands and knife, which was for the purpose of showing the state of feeling of Rodney Howell and his disposition to be violent towards the appellant. And this would tend to shed light upon the attitude of Rodney Howell towards the appellant in this difficulty.
The difficulty of Rodney Howell to the effect that the appellant offered to compromise this matter by paying the hospital and doctor bill should not have been allowed to go to the jury. It evidently was intended as an offer of compromise in settlement of the case and was not intended as an admission of guilt.
The great weight of the evidence in this case, we think, indicates that the appellant acted in self defense, and not with intent to kill the witness, Howell.
The law in Mississippi, as we understand it, is that when a jury trying a felony case separates the presumption is that something improper could have and did happen. This rule evidently is intended for a great and noble purpose which is to keep jurors away from persons and influences that are not connected with the law suit. It is not insisted in this case that the officer or the juror acted corruptly but they did knowingly violate the judge's orders and did something which the appellant would not have permitted if he had had any way to have presented it and he certainly expected the jury to carry out the order of the court.
Cartright v. State, 14 So. 526, 71 Miss. 82; Tarkington v. State, 17 So. 768, 72 Miss. 731; Quillen v. State, 8 S. M. 587; 34 A.L.R. 1123; Hinds v. State, 8 Humph. 597. Webb M. Mize, Assistant Attorney General, for the state.
It is a rule that objections to evidence to be available on appeal must be specific and point out the infirmity of the evidence.
Boatwright v. State, 143 Miss. 676, 109 So. 710.
An offer of compromise of a crime unaccepted by the prosecutor may be proven by the state as an admission of guilt.
State v. Rodriges, 13 So. 802, 45 La. Ann. 1040; Read v. State, 71 So. 96, 195 Ala. 671.
Under a number of cases the Supreme Court of Mississippi has held that the lower court's action in admitting or excluding testimony will not be considered on appeal unless they are specifically set up in the motion for a new trial.
Richburger v. State, 90 Miss. 806, 44 So. 772; Wilkerson v. State, 106 Miss. 633, 64 So. 420; Borrum v. State, 94 Miss. 88, 47 So. 480.
The same thing was proved by Mrs. C.E. Turner as was attempted to be proven by Mrs. Joe Turner. In the event there had been error in the exclusion of this testimony, it was cured because it was brought out in later testimony.
McCoy v. State, 91 Miss. 257, 44 So. 814; Lohrey v. State, 91 Miss. 853, 44 So. 145.
Appellant got the benefit of the excluded evidence in spite of the ruling of the court, and therefore, he cannot complain here.
Holliday v. State, 108 Miss. 726, 67 So. 181.
The third assignment of error is on the proposition of the juror, Mack Sullivan, being separated from the remainder of the jury for a short time during the noon hour. The record uncontradictedly shows that he was at all times in the custody of the deputy sheriff and that no one tampered with the juror and no one attempted to tamper with the juror. It was also not shown that the appellant's rights were harmed or there had been an opportunity for them to be harmed. Under the authority of the following cases there is no error under the third assignment of error.
Adams v. State, 167 So. 59; Sanders v. State, 150 Miss. 296, 116 So. 433; Queen v. State, 152 Miss. 723, 120 So. 838; Wells v. State, 162 Miss. 617, 139 So. 859.
Appellant was convicted of assault and battery with intent to kill and murder one Rodney Howell, and sent to the penitentiary for a term of seven years; and from this conviction and sentence, this appeal was prosecuted.
The testimony offered by the State fully supports the verdict, while the appellant's testimony, if believed, showed justification on the ground of self-defense. The first assignment of error is based upon the admission of testimony of the party alleged to have been assaulted to the effect that, after the case was in court, the appellant offered to pay his doctor's and hospital bills if he would let the matter drop. While there is some authority for the view that offers of compromise are not admissible in criminal cases, the great weight of authority is to the effect that the rule as to inadmissibility of offers of compromise in civil cases is not applicable in criminal cases, and that a voluntary offer of compromise is admissible. 16 C.J. 1264, and authorities there cited. In Bridges v. State, 86 Miss. 377, 38 So. 679, a vague and indefinite offer to pay for alleged stolen property was held to be inadmissible where the offer to pay was induced by an offer of immunity from prosecution if the accused would repay the stolen money. Manifestly, any offer of compromise which is induced by a promise of immunity from prosecution would be inadmissible; for, as said in the Bridges Case, supra, even "an absolute and unequivocal confession of guilt, if induced by an offer of compromise, and a promise that payment would prevent a prosecution, would be clearly incompetent." In the case at bar, the offer of compromise was voluntary; and there was no error in admitting evidence of the offer.
The appellant also complains of the exclusion of the testimony of his wife to the effect that, immediately after a prior alleged difficulty between said Howell and her husband in which her husband was cut with a knife, Howell came into the house with a bloody knife in his hand and washed the blood off the knife and off his hand. Conceding for the purpose of this decision that this testimony was admissible, its exclusion was not reversible error, for the reason that, without objection, appellant was permitted to show the same fact by another witness.
Appellant filed a motion for a new trial on the ground, among others, that one of the jurors was permitted to separate from his fellows and thereby was afforded opportunity to communicate with outsiders. The evidence offered on the hearing of his motion shows that while the juror separated from his fellows and walked about two blocks to a restaurant where he purchased lunches, yet he was accompanied all the while by a deputy sheriff and had no sort of communication with any one other than the deputy in charge. The mere possibility that a juror has been exposed to outside influences is not sufficient to vitiate a verdict, and from the evidence in this case, it affirmatively appears that no improper influences were brought to bear on the juror; and the court committed no error in overruling the motion to set the verdict aside. Skates v. State, 64 Miss. 644, 1 So. 843, 60 Am. Rep. 70; Haley v. State, 123 Miss. 87, 85 So. 129, 10 A.L.R. 462; Sanders v. State, 150 Miss. 296, 116 So. 433; Queen v. State, 152 Miss. 723, 120 So. 838; Wells v. State, 162 Miss. 617, 139 So. 859; Adams v. State (Miss.), 167 So. 59. We find no reversible error in the record, and therefore the judgment of the court below will be affirmed.
Affirmed.