Borowitz v. State

Smith, C. J., delivered the opinion of the court. The court below committed no error in excluding from the jury certain persons who stated they had conscientious scruples against the infliction of capital punishment. Russell v. State, 53 Miss. 367; Fortenberry v. State, 55 Miss. 403; Smith v. State, 58 Miss. 867; Spain v. State, 59 Miss. 19; and Cooper v. State, 59 Miss. 264. These cases were decided under sections 2877 and 3083 of the Code of 1880, which are as follows: “2877. Every person who shall be convicted of murder shall suffer death, unless the jury rendering the ver-. diet shall fix the punishment at imprisonment in the penitentiary for the life of the convict.” [48] “3083. In any case in which the penalty prescribed by law, upon the conviction of the accused, is death, the jury finding a verdict of guilty, may fix the punishment at imprisonment for the natural life of the party; and thereupon the court shall sentence him accordingly; but if the jury shall not thus prescribe the punishment, the court shall sentence the party found guilty to suffer death. ’ ’ The only change in this connection made in either of these statutes as they now appear as sections 1229 and 1512, Code 1906, are, that at the end of the first is added the following: “Or unless the jury shall certify its disagreement as to the punishment as provided by section 1512, in which case the court shall fix the punishment at imprisonment for life.” And at the end of the second, the following: “Unless the jury by its verdict certify that it was unable to agree upon the punishment, in which case the court shall sentence the accused to imprisonment in the penitentiary for life.” These amendments do not deal with and nave no bearing on the qualifications of jurors, but, as is well known,, were adopted to prevent the mistrials that not infrequently resulted in cases wherein the jurors agreed on the guilt of the accused, but were unable to return a verdict because they disagreed on the punishment to be inflicted, and some of them were unwilling to certify such disagreement to the court, for the reason that a verdict so returned would be followed by the death penalty. In the language of Campbell, J., in Spain v. State, supra: ‘ ‘ The law permits either of two verdicts, viz., a verdict of guilty, to be followed by a sentence of death, and a verdict of guilty, with imprisonment in the penitentiary for life. If the state must accept jurors whose scruples of conscience as to capital punishment will preclude them from consenting to a verdict of guilty to be followed by [49] the death penalty, it thereby abandons in advance one of the two verdicts allowable in such cases. “It is not correct to say that the state is indifferent as to which of the two verdicts may be given. It has denounced the penalty of death against murder; it permits the jury to say that another penalty shall be substituted for that prescribed by law as the appropriate one. To give the accused the right to have jurors who will not consent to the penalty of death is to preclude the punishment the law has affixed, and to make the law itsélf an instrument to defeat its own execution. ’ ’ There is no merit in any of the assignments of error. Affirmed, and Friday, the 10th day of August next, fixed as the day for the execution of sentence. Affirmed.