Opinion
No. 28968.
October 6, 1930.
1. CRIMINAL LAW. That justice who bound defendant over acted as bailiff did not warrant reversal, where no objections were made at trial.
Where a person is convicted of a felony, the court will not reverse the conviction merely because the justice of the peace, who heard the preliminary trial and bound the defendant over without bail in such preliminary hearing, acted as bailiff, but did not testify in the case, where no objections were made to his attending the jury as bailiff at the time he was placed in charge thereof.
2. CRIMINAL LAW. On motion for new trial based on facts not known during trial, both defendant and attorney must make affidavit as to ignorance of facts.
On a motion for a new trial setting up facts alleged not to be known until after the trial as a reason for granting a new trial, both the defendant and his attorney, or attorneys, must make affidavit that they did not know of the facts during, or before, the trial, and the affidavit of the defendant alone is insufficient to require the sustaining of a motion on such ground.
APPEAL from circuit court of George county. HON.W.A. WHITE, Judge.
U.B. Parker, of Wiggins, for appellant.
Where the justice of the peace, who conducted the preliminary hearing and bound over without bail the defendant on a charge of murder and assisted sheriff in procuring testimony against such defendant, acted as bailiff for the jury who tried the defendant on the charge of murder, a conviction of such defendant should be set aside.
Tarkington v. State, 72 Miss. 731.
It would be unreasonable for the court to require an ignorant negro who was being held without bail in a strange county where he was not acquainted and where his attorney was not acquainted, and especially where his affidavit shows that neither he nor his attorney were acquainted with or knew the bailiff or knew that the bailiff was the justice of the peace who went with the sheriff to the scene of the difficulty about which he was being tried, wrote down the testimony of witnesses, returned and issued process and tried this defendant as conservator of the peace and bound him over to await the action of the grand jury without bail, as a condition precedent to obtaining new trial, to make any stronger affidavit than he did make.
Tarkington v. State, 72 Miss. 731.
The affidavit supporting the motion for a new trial was penned in the handwriting of the attorney for defendant in the lower court and the court below, and we believe this court needs no further proof of the verity of defendant's statement that his attorney was not acquainted with and did not know the bailiff.
Geo. T. Mitchell, Attorney-General, and Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
It is proper to deny a motion for a new trial, when it is not shown by affidavit that both the accused and his counsel were ignorant of the facts, alleged as grounds for the new trial, before the jury's verdict was returned.
Hams v. State, 61 Miss. 304; Brown v. State, 60 Miss. 447; Lipscomb v. State, 76 Miss. 224, 25 So. 158.
Where the record shows that the bailiff was not a witness in the case, either for the state or the appellant and there was no showing made by the appellant that the bailiff was present during the jury's deliberation or that he said one word to any member of the jury concerning the case or that he was alone with them at any time, except when he conducted them to their dinner.
A motion for a new trial alleging that the bailiff was the justice of the peace who conducted the preliminary hearing of the defendant and bound him over without bail, should be overruled.
Barnett v. Eaton, 62 Miss. 768.
The appellant, James Grady, was convicted of murder and sentenced to life imprisonment in the state penitentiary, from which conviction, he appeals.
The evidence is ample to sustain a conviction. The only error assigned as reversible is that the court erred in overruling the defendant's motion for a new trial, and assigned as reason therefor that J.W. Passon, who was a bailiff in charge of the jury during the trial, had also been and was the justice of the peace who had assisted the sheriff in locating the witnesses after the killing, and had heard a preliminary trial and bound the appellant to jail without bail pending investigation by the grand jury. This affidavit is made by the appellant alone, and no affidavit by his attorney was made and filed with the court. The defendant in his affidavit alleged: "Defendant says that neither he nor his attorney knows or is personally acquainted with said J.W. Passon, justice of the peace, and neither he nor his attorney knew at the time said bailiff was sworn and put in charge of said jury to try defendant, that said bailiff was the justice of the peace who procured the evidence against him and who bound him over to await the action of the grand jury of George county and defendant did not know he was appointed bailiff and did not learn such until long after the argument of defendant's attorney had been made to the jury — and that the said jury has been out of the presence of the court and the defendant under the control of said bailiff during all of the noon hour of this the day of defendant's trial and conviction and that said justice of the peace acted as the chief bailiff to said jury, and for the reason that the evidence is insufficient to support the verdict of the jury."
The proof does not show that J.W. Passon was a witness on the trial or testified, but the record shows, on the contrary, that he did not testify in the case. There is nothing to show that the bailiff, J.W. Passon, in any respect said or did anything to influence the jury's deliberation, or even that he was present while the jury was deliberating. The appellant relies upon Tarkington v. State, 72 Miss. 731, 17 So. 768, in which case it appeared that the sheriff and several bailiffs, some in addition to those specially in charge of the jury, occupied a room during the deliberation. That case is different in its facts from this, and especially in that the sheriff and some of the deputies were witnesses in the trial of the defendant. However, the affidavit of the appellant is not sufficient to raise this point. The rule requires that both the appellant and his attorneys shall make affidavit that they did not know the fact at the time the trial was in progress and did not learn of it until after the verdict. William Harris v. State, 61 Miss. 304; Brown v. State, 60 Miss. 447; Lipscomb v. State, 76 Miss. 224, 25 So. 158.
It is inconceivable how a preliminary trial could have been conducted by the justice of the peace without the defendant being present, and if he was present he certainly would be able to recognize the justice of the peace when he was presented and sworn in as a bailiff; but regardless of this fact the application for a new trial was not properly supported by affidavits required by law, and we cannot reverse the action of the trial court in overruling the motion for a new trial in this case, consequently the judgment of conviction will be affirmed.
Affirmed.