Collins v. State

54 So. 665, 99 Miss. 47

Opinion

Anderson, J.,

delivered the opinion of the court.

The appellant, Thelma Collins, was convicted of the unlawful sale of intoxicating liquors, and appeals to this court.

The appellant made an application for a continuance on account of the absence of two witnesses. When this application came up for hearing, the court called the appellant to the witness stand,' and had her sworn, and •examined her. The examination by the court took place in the presence of the jury before whom the appellant was tried and convicted. ‘During her examination by the court, the appellant testified as follows, over the objection of her attorney: “The Court: Q. Bill Hinton (one of the absent witnesses) is a white man? A. Yes, sir. ■Q. And you are a nigger? A. Yes, sir. Q. He visits your house very frequently, doesn’t he? A. No, sir. Q. How often does he come there? A. I owed him for some molasses. Q. Sweet things? A. Yes, sir. Q. Now, wasn’t he present there, in the room there, when some •of the boys came down there — Bill Hinton? A. No, sir. Q. Never had been there before? A. He had been there before. Q. How many times ? A. I bought lots of things from him; he peddles. Q. He had never been in your house? A. He had been in there collecting. Q. How many times? A. I bought some potatoes from him once. •Q. Did you pay him the money for them? A. Yes, sir.” At the conclusion of her testimony, her attorney stated to the court, “I think, your honor, it would be unfair to try it before the jury here; they have heard the testimony,” to which the court responded, “I am going’ to try the case to-day, if it takes all night.” The court then asked the jury if anything came out in the examination of the appellant which would affect them in making up their verdict in the case, to which “some of the jury answered by saying, ‘No,’ and others by shaking their heads,” etc.

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 appellant in this case was denied this right. Here we have the judge, in the presence of the jury before whom the appellant was to be tried, by the character of questions put to her, bringing her canse into contempt. We reiterate what the court said in Green v. State, 53 South. 415: “It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. Hie cannot be too careful and guarded in language and conduct in the presence of the jury to avoid prejudice to either party. 21 Ency. P. and P. 994, 996, and notes. 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.”

Reversed and remanded.