Darby v. State

delivered the opinion of the court.

P. TV. Darby was indicted and tried on a charge of murder and ivas convicted of manslaughter, and, from the judgment sentencing him to the penitentiary, he prosecuted this appeal.

This is the second appeal in this case, and the opinion on the former appeal, which is reported in 121 Miss. 689, 84 So. 6, contains a full statement of the facts upon which the conviction is based.

We have given careful attention to all the assignments of error, but, in view of its importance, we will first consider the assignment which is based upon the refusal of the court to.set aside the verdict and grant the defendant a new trial for the reason that one of the jurors, Tom Rhodes, ivas disqualified.

In support of this assignment appellant introduced a witness, Ed Baker, who testified- that he had attended a former trial of the case and heard all the testimony there offered; that a few days before the last trial he discussed the case with the juror Rhodes, and fully detailed to him the testimony as given at the former trial. This witness testified, in part, as follows:

“Did you discuss with him the testimony in the case?” “Yes, sir; he told me about the Kizer case. I told him, from the time the difficulty started at Darby’s house and ended at Savage, I didn’t think they could convict him, and I asked him what he thought of the Kizer case, and he said it looked like, from what he could hear, that Darby was more justifiable in shooting than Kizer was, and he thought if they convicted Kizer that they ought to send both of them up; but they turned Kizer loose.” “Did he say whether he thought they ought to have been convicted?” “He said they ought to be convicted; if they didn’t convict a man of crime like that — turn him loose — they ought to do away *445with the courthouse.” “Did he discuss the testimony in the Darby case as well as the Kizer case?” “I went through the testimony in the Darby ease, from the house down to Savage and how it all happened.” “You told him what the witnesses testified to in court?” “Yes, sir.” “You told him that?” “Just as near as I heard it.” “You had been here at court and knew Avhat the witnesses had testified to?” “Yes, sir.” “Did you detail to him the facts of the killing?” “Yes, sir.” “Did he express himself?” “Yes, sir; as I would inform him from the different witnesses. I went over the wiiole thing with him.” ‘You heard all the details and detailed them to Rhodes?” “Yes, sir; from the beginning of it until it ended.”

The witness also testified that this juror stated to him that he thought both Kizer and Darby ought to be convicted, but since they left Kizer loose they Avould also let Darby loose, but that if men Avere brought up in court for killing a man in a little dispute, and turned loose, then a man ought to take his gun and shoot his way out.

The juror Rhodes was introduced. as a witness, and as Ave construe his testimony it is in effect an admission of the truth of the testimony of the witness Baker. When asked if he had not said that both Kizer and the defendant, Darby, ought to serve a term in the penitentiary, his reply was, “Yes, sir; I might have said that.” He would neither admit nor deny that he had stated that, if men Avho committed such crimes Avere turned loose, there was no use to have courts or trials, and Avhen a man wms insulted he should shoot his Avay out. He testified that when asked on his voir dire Avhether he had discussed the case Avith any one or had a fixed opinion, he stated to the court that he had not discussed the case with any eyewitness and had no fixed opinion that could not be changed by the evidence; that in the trial of the case he had not been actuated by any motive of bias or prejudice; that he had been fair and impartial, and, to the best of his ability, he had not permitted himself to be influenced by anything except the evidence and the laAV that Avas given to the jury.

*446After a careful consideration of all tbe testimony adduced on the motion for a new trial, wé are convinced that this juror, Rhodes, ivas incompetent. Although he qualified himself on his voir dire, it is apparent that he concealed from the court the fact that he had a fixed opinion based upon a detailed statement of all the facts sworn to by the witnesses at a former trial. Time, he said the opinion which he had could be changed by the testimony, but he had already heard from his friend and neighbor a complete narrative of the testimony of each witness offered at the former trial, and, after a' full discussion of this testimony, he had formed this opinion and had given forcible expression to the .view that, upon this evidence, the defendant ought to be convicted. Under the provisions of section 2685, Code of 1906, section 2177, Hemingway’s Code, the fact that a juror makes oath that he was impartial is not conclusive of that fact, and, while we hesitate to interfere with the findings of fact by the trial judge on a question such as is here involved, we cannot concur in the view that, under the facts here, the juror was competent.

The action of the court in excluding the alleged dying-declaration of the deceased, which was offered by the defendant, was correct, and we find no reversible error in any of the other assignments. For the error in refusing a new trial, the judgment of the court below is reversed and the cause remanded.

Reversed and remolded.