Cavanah v. State

Campbell, J., delivered the opinion of the court. The Circuit Court did not err in refusing to quash the venire facias. It was ordered in accordance with the statute applicable to sucha state of case (Code, sect. 2759), and, so far as the record informs us, it was executed in a proper manner by the. sheriff. The objection urged is, that the sheriff resorted to the assessment-roll to aid him in making a list of persons to be summoned in obedience to the venire facias, and prepared a list of names of persons, and handed it to his deputies, with directions to summon those persons and any others whom the deputies might meet with who were suitable, .and that the persons summoned were those whose names were on the list thus made, and a few others summoned by the deputies in accordance with the directions of the sheriff. It is not claimed that there was any corruption or partiality on the part of the sheriff, or that he did not summon good jurors; but it is insisted that the precedent selection by the sheriff of those who should be summoned was improper, and that calling to his aid, in making this selection, the tax-books, was inadmissible ; and that he should have gone out into the county, in person or by deputies, and should have summoned every man he met who was liable to jury service, passing by none, but taking them by chance and indiscriminately, and thus he should have summoned the required number. We cannot adopt this view. As it was the duty of the sheriff to ‘ ‘ sum — 307 — mon ” the specified number of jurors, he had the right to select the persons to be summoned, and he could lawfully make a list of the names of such' persons beforehand, and it is not material whether he made' it by the aid of books, in his office or elsewhere, or from his memory. The'only limitation on his power was his duty to be impartial, in obedience to the command of the writ. The true question is, whether he obeyed the venire facias in good faith and with fairness. ■ We must look to the result, and not to the means of reaching it, except as those means may have affected the result. It seems to us that the many names on the assessment-roll would be of great aid to the purpose to obtain from the body of the county a number of jurors, and that it was a wise precaution of the sheriff to provide a list to facilitate the summoning of the required number, and it is not charged that he had any other object in view. It was not error to refuse the application for a change of venue. It was proper for the court, by calling witnesses and examining them, to satisfy itself whether, “ by reason of undue prejudice in the public mind,” the prisoners could not have a fair and impartial trial in the county. Weeks v. The State, 31 Miss. 490; Mask v. The State, 32 Miss. 405. Looking to the evidence on this subject, we fail to discover any ground to believe that there existed in the public mind that “ undue prejudice ” meant by the statutes, — i.e., suchas would be likely to be so felt in the jury-box as to prevent the accused from having a fair and impartial trial by the evidence and the law. There is no error in the several rulings by the Circuit Court upon questions of evidence. If it was the purpose of counsel for the prisoner to lay the foundation for contradicting a witness by the testimony he had given on a former investigation, which was in writing, that written testimony should have been presented to the witness ; and it was not proper to ask him if he had so testified, without allowing him to inspect the written — 308 — testimony. 1 Greenl. on Ev., sect. 465 ; 1 Whart. on Ev., sect. 68. A careful inspection of the instructions given by the court to the jury, and those asked for the defendants and refused, has convinced us that the prisoner has nothing to complain of. in this respect.. Forty-two instructions were asked of the court, and sixteen, were given for the State and eighteen for the defendants. In numbers, the defendants had the advantage, and on the score of liberality they had no ground of complaint. Every principle which could be invoked in their behalf, couched in language the most favorable and effective which learning, experience, and ingenuity could command, was embraced in the instructions given for the defence. The instructions for the State are correct; and as mere numbers do not constitute error, although very apt to embrace it, we are not authorized to reverse the judgment on account of the instructions. The refusal of a few of the instructions asked by the prisoner is justified by the fact that the doctrine announced by them is contained in those given, or is not sound. The counsel for the State, who made the opening argument to the jury, read as part of his argument an essay of his own on duelling, and certain extracts from Sabine on Duels and Duelling. This was objected to by counsel for the prisoner, and the court was called on to stop this course of argument, but declined to do so ; and this was excepted to, and is assigned for error here. The ‘ ‘ essay ’ ’ of the counsel is represented by the bill of exceptions as ‘ ‘ containing a vivid description of the results of different duels, and the fate of successful parties engaged therein, and also the ruin to families of said parties and the “ extracts” from Sabine on Duels and Duelling, after layiug down the rule “ amongst gentlemen ” as to blows, insults, and apologies, give account of the after life of one who had killed his adversary in a duel, which is represented to have been one of great unhappiness to himself and family. It is a just supposition that the counsel for the State was led — 309 — to the course of argument mentioned, bj the evidence in this case of the course' of - the prisoner in his correspondence with the deceased, and the' proceeding to “ post him afterwards. We are not prepared to say that an argument directed against duelling was not pertinent to the case, and appropriate. The circuit judge must have thought so, and the record does not show that he erred in this respect. The record suggests that the theory of the defence was that the prisoner, who had been beaten by Cameron, went to Crawford to obtain redress in the mode usual “ amongst gentlemen,” and that he sent him, by a friend, a formal demand for an unconditional written apology or a meeting for mortal combat, and as this was refused, he was proceeding to “ post ” Cameron as a coward, when the occurrences took place which resulted in the killing of Cameron. Prisoner sought to show that he did not kill Cameron in pursuance of the previous difficulty, but that he had obtained satisfaction for that by the correspondence Avith Cameron, and after “ posting him ” the matter was to be dismissed from mind by the prisoner, and he Avas no longer to seek redress from Cameron, Avliom he was thereafter to ignore. This theory of the defence is so connected with the subject of duelling that a dissertation on that subject may not be said to have been inappropriate. Undoubtedly, there is a limit to the latitude to be alloAved to counsel in addressing a jury, and it is the duty of the court to interfere to prevent an abuse of the privilege of counsel, to the perversion of justice, by misstating facts or commenting on facts not in evidence. A large discretion in this matter must be exercised by the circuit judge. It is a very delicate duty ; for he must be cautious not unduly to abridge the liberty of counsel, and, in restraining him within proper limits, must not deny him the full liberty of discharging Ms important duties, in enforcing his vieAVS of the laAV and the evidence. “His illustrations may be as various as are the resources of his genius ; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.” — 310 — Where the privilege of counsel had been abused to such an extent as to induce the belief of probable injustice as its result, and the court below had not properly interposed, we would not hesitate to apply the corrective; but in this case we see no ground for interference. The evidence demanded a verdict of guilty of murder, and we must suppose that the jury responded to the evidence, and were not unduly or improperly influenced by the argument made on the subject of duelling. The acquittal of John W. Cavanah is decisive evidence that the jury was not “ carried away” by the eloquence of counsel for the State, and was ready to take the most favorable view for the defendants. The motion for a new trial is based on the fact that one of the parties indicted and tried was acquitted, and that his testimony can be had for the prisoner on another trial, and will change the verdict rendered on the former trial, and cause his acquittal. We do not consider this as, per se, a ground for a new trial. It is to be considered. It is an important element, and may be entitled to much weight as one circumstance in determining a motion for a new trial, but it has no higher character than this. In some cases it would be more persuasive than in others. In no case is it alone sufficient to entitle a party to a new trial. Each case must be determined by its circumstances, and the new trial granted or refused according to the view taken of the whole- evidence, in connection with the evidence of the acquitted party, now made competent as a witness for the other. Applying these views to this case, and considering the affidavit of John W. Cavanah, the acquitted party, in connection with all of the evidence on the trial, we entertain the opinion that the new trial was properly refused. The verdict ought not to be different as to the prisoner upon the whole testimony, including the facts stated in the affidavit of John W. Cavanah. ■ Without special mention of the other questions raised by the record, it is sufficient to say that we have carefully con — 311 — sidered the eleven bills of exception, and the forty-two instructions asked, and the fifteen grounds of error assigned here, and have failed to find any ground on which to disturb the judgment, and it is therefore affirmed.