Opinion
No. 32363.
February 1, 1937. Suggestion of Error Overruled, February 15, 1937.
1. CRIMINAL LAW.
Law does not require verdicts to be written upon separate pieces of paper.
2. CRIMINAL LAW.
Where verdict of guilty written on back of one of instructions was returned, subsequent dismissal and reassemblage of jury after they had mingled with others in order to obtain verdict written on separate piece of paper held no ground for reversal, since first verdict was valid.
3. CRIMINAL LAW.
Practice of requiring that verdicts be written on separate pieces of paper rather than on instructions, to avoid appearance that verdicts are directed by court, is commendable, but not essential to validity of verdicts.
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Earle L. Wingo, of Hattiesburg, for appellant.
It is readily apparent that in this case serious error was committed. Appellant was being tried for a felony, and, under the law, it is well settled that the jury cannot, under any circumstances, separate from the moment that they are accepted by the state and defendant until they are finally discharged from the trial of a particular case. This was not true here, for the court, in its statement in the record, shows that after argument of counsel the jury retired to its room to consider of its verdict, and presently returned into open court with a verdict of guilty and recommendation of mercy. The jury was then finally discharged for the week, the date of the trial being on Saturday afternoon and being the last day of court. The statement further shows that immediately thereafter the jurors were excused and finally discharged and directed to go to the clerk's office and receive their pay, which was then done; that the jurors separated and started to their respective homes when it was discovered by the court for the first time that the verdict of the jury had been written upon the back of one of the instructions instead of on a separate piece of paper as required by law; that upon discovering this fact and this error the court directed the sheriff to go out upon the streets and reassemble the jury, and after some thirty or thirty-five minutes the jurors reassembled in the courtroom and were directed by the court to return to the jury room and bring in a verdict of guilty against the appellant upon a separate piece of paper. This, of course, was done.
We earnestly submit that because of the irregularity shown in the record and as established by the dictated statement of the court, the appellant was entitled to and should have been granted a new trial.
Carter v. State, 78 Miss. 348, 29 So. 148.
Webb M. Mize, Assistant Attorney-General, for the state.
It is the position of the state that the jury's first verdict is good and binding and that the action of the court in calling the jury back and directing the reforming of the verdict was unnecessary.
We have searched for statutes and find none which says that the verdict of the jury must be written on a separate piece of paper.
Section 574, Code of 1930.
What happened in the case at bar is not prohibited by our statutes and we see no reason why a judgment should be reversed because something that is customary in some parts of the state, but which is not required by statute, was not followed.
It is a familiar rule of law that a court, during the term thereof, has full control over the records made by it during the term.
Archer v. State, 140 Miss. 597, 105 So. 747; Thompson v. State, 124 Miss. 462, 86 So. 871; Lipscomb v. State, 76 Miss. 223.
The court's action here transpired several days before a motion for a new trial was filed and no objection was made by appellant to the verdict written on the back of the instruction, and no objection was made to the court's reassembling the jury and directing that the verdict be reformed.
Wampold v. State, 170 Miss. 732, 155 So. 350; Dugan v. State, 151 Miss. 781, 119 So. 298; Salmon v. State, 151 Miss. 539, 118 So. 610; Pruitt v. State, 163 Miss. 235, 140 So. 683; Stegall v. State, 166 Miss. 276, 144 So. 897.
The appellant was indicted, tried, and convicted in the circuit court of Forrest county upon a charge of robbery; was sentenced to serve ten years, and prosecutes this appeal here.
The only ground assigned for reversal is that the court erred in permitting the jury to return to the jury room and make up a verdict after they had been discharged for the term, and after they had separated and mingled with the populace, the case being a felony.
The record shows that the jury retired to the jury room to consider their verdict, and returned into court the following verdict: "We, the jury, find the defendant guilty as charged, but recommend the mercy of the court." The trial judge then sentenced appellant to ten years in the penitentiary, and discharged the jury, directing them to go by the clerk's office and get their pay, it being Saturday, the last day of the week, but not the last day of the term. After the jury left the courtroom, the circuit judge noticed that the verdict was written on the back of one of the instructions, and as a matter of precaution he had the deputy sheriff reassemble the jury, and they wrote precisely the same verdict upon a separate piece of paper, and the judge repronounced the same sentence, noting same in the record. There is no other proof in reference to this matter than the judge's statement.
The law does not require verdicts to be written upon a separate piece of paper. The verdict as originally returned in this case written upon one of the instructions was a valid verdict, and the reassembling of the jury did not affect its legality in any respect, it having been rendered before the jury was discharged.
There has been, at times, some confusion created by verdicts of juries being written in blank in instructions, leaving the appearance of having been directed by the court, and errors of this kind have caused the judges of some courts to require that verdicts be written upon separate pieces of paper, which is a commendable practice, but not essential to the validity of verdicts.
The judgment of the court below will therefore, be affirmed.
Affirmed.