Adams County MsArchives Court.....Friar, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Friar v. The State.

pages 422-428

The question of the necessity and propriety of directing a special term of the 
circuit court, is a matter entirely within the discretion of the judge. No 
formal order is necessary by the statute.

The twenty days notice by advertisement, required by the statute, is for the 
information of the public, but is not necessary to confer jurisdiction. In 
this respect the statute is merely directory.

Where the indictment is endorsed a true bill, and returned by the authority of 
the whole grand jury, it is sufficient without the special appointment of a 
foreman.

The sheriff, as one of the officers of the court, is competent to serve the 
prisoner with a copy of the venire and indictment.

By the assent of the parties, or the direction of the court, the jury may 
bring in a sealed verdict, deposit it with the clerk, and then separate before 
it is opened and read.

The affidavit of a juror will not be received to impeach his verdict.

A mere affidavit of a third person, that the prosecutor had declared, that 
there was in existence a bill of sale of the property charged to be the 
subject of the larceny, which bill of sale went to establish title in the 
prisoner, is not a sufficient ground for a new trial, unless the affidavit be 
supported by the oath of the prisoner, alleging sufficient reason, why such 
bill of sale was not produced on trial, and an expectation, that it could be 
procured on a subsequent trial.

The bill of exceptions must show the precise ground of exception.

A general verdict of guilty will be sustained, although all the counts of the 
indictment are bad but one.


ERROR to the circuit court of Adams county.

Jennings and Webber, for the plaintiff in error.

Attorney-General for the state, cited Acts of 1836, p. 25: Rev. Code, 106; 1st 
Session of Acts of 1830, ch. 15, sect. 5. Chitty’s Crim. Law, 640; 1 Salk. 
384; 1 Cowper, 276; Rev. Code, 109.

Mr. Justice TROTTER delivered the opinion of the court.

This case was brought up by a writ of error to the criminal court of Adams 
county. The indictment was found at a special term of that court which was 
holden on the fourth Monday of June, 1838. It charged the plaintiff in error 
with the crime of negro stealing under the statute of this state, and 
contained two counts, which varied from each other only in the description of 
the slave, the subject of the larceny. The prisoner was arraigned on the 
indictment and pleaded not guilty.

At the trial the prisoner objected, that he had not been served with a copy of 
the bill of indictment, and a list of the venire, two entire days before 
trial, according to law. The objection was, however, overruled, and the jury 
returned a general verdict of guilty, on both counts of the indictment. The 
plaintiff then moved the court for a new trial, on the grounds stated in the 
record, and which will be presently noticed, but the motion was refused, and 
he now assigns as grounds of error.

1. That the record shows no order for the holding of the special term of the 
court below. By the 22d section of the act to establish the criminal court of 
this state, it is provided, that whenever it shall be deemed necessary, the 
judge of said court may hold special terms, upon giving twenty days notice 
thereof. The question of the necessity and propriety of directing a special 
term is thus referred entirely to the discretion of the judge and with it we 
can have nothing to do. No formal order is necessary, nor is any required to 
be shown upon the minutes. The twenty days' notice of the time of holding any 
such special term is required for the information of those who may have causes 
or business in the same, but it is not necessary to confer jurisdiction. In 
this respect the act is merely directory; without the publication of notice as 
required, the proceedings could only be held irregular. But it is contrary to 
well settled principles to decide the proceedings of a court of record to be 
irregular without any proof that they are so. The presumption is in their 
favor, and must be indulged until the contrary clearly appears.

2. It is secondly assigned as error, that the record does not show the 
appointment of any foreman of the grand jury. To this objection it may be 
answered, that the record states that the grand jury presented the bill of 
indictment in open court. It is endorsed a true bill by one of the body, and 
it is shown independently of this endorsernent,that it was returned by the 
authority of the whole fifteen jurors who composed the panel. The caption of 
the record states that, "by the oaths of the jurors (naming them at full) it 
was presented as follows," and then sets forth the bill of indictment at 
length. This is surely as satisfactory as to the finding of the jury, and the 
idenfty of the bill, as the simple endorsement of a regularly appointed 
foreman. The objection is wholly contradicted by the record.

3. The next ground of error is, that the plaintiff in error was not served 
with a copy of the bill of indictment, and a list of the venire two entire 
days before the trial, as required by law. This is certainly a right to which 
he is strictly entitled by the statute of this state, to enable him to prepare 
his defence and to make his challenge to the jurors. But the record shows that 
a copy of the indictment and of the venire were both furnished him by the 
sheriff on the 29th day of June, and that the trial did not take place until 
the 3d day of July. But it is insisted that the sheriff was not authorised by 
law to furnish such copies. The statute simply provides that the accused in 
capital cases shall be entitled to have a copy of the indictment and of the 
venire two entire days before his trial, and is silent as to who shall furnish 
them. He has, therefore, a right to look to the court, and it is surely the 
duty of the court to see it done by some one of its officers, and we can see 
none more proper than the sheriff.

4. It was next assigned as error, that the court permitted the jury to 
separate and return a sealed verdict. The record states that it was agreed by 
the prisoner and his counsel, and by the state through her counsel, that the 
verdict of the jury, when agreed upon, might be sealed by the jury, and left 
in charge of the clerk until Thursday following, and that they might be 
allowed to separate after agreeing upon their verdict, and sealing and 
depositing it as aforesaid until Thursday as agreed upon. The record then 
proceeds to state, that on Thursday, the 5th day of July, the parties 
appeared, and that the jury were called into court, and that they "severally, 
and upon their oath do say in open court, and by their sealed verdict 
aforesaid, opened and read to them by the clerk; we of the jury find the 
prisoner guilty in manner and form, as he stands charged in the bill of 
indictment." It has been repeatedly held, that the court will not set aside a 
verdict for irregularity, when the jury have separated after agreeing to a 
sealed verdict, if agreed to when they deliver it. Such was the case of 
Douglass v. Tousey, 2 Wend. 352. And where the judge directs the jury to bring 
in a sealed verdict, and gives them permission to separate after agreeing on 
the same, the parties will be deemed to have assented to such permission if no 
objection is made, and it is no cause of objection to the verdict. Ibid. In 
the case of The People V. Douglass, 4 Cowen, 26, it was held, in a civil suit, 
to be perfectly clear that the separation of the jury without, and even 
contrary to the directions of the court, would not of itself warrant the court 
in setting aside the verdict. The same principle is established in the case of 
Bunn v. Hoyt, 3 Johns. Rep. 255. In the last case, the jury had deliberated 
several hours, sealed their verdict and separated, and next morning brought it 
into court. On being polled, one of them disagreed, and Judge Kent sent them 
out again, and the disagreeing juror ultimately assented to the verdict, as it 
had been sealed up. It was held, that until it was received it was no verdict, 
and the jury had a right to alter it. 6 Johns. Rep. 68. This is precisely the 
case before us, the verdict, though sealed, was not binding until it was 
delivered into court. When read, if it is objected to, it is then emphatically 
their verdict, for when read, either party has a right to poll the jury, to 
ascertain if they all assent. Blakely v. Sheldon, 7 Johns. Rep. 32. In this 
case, the verdict was opened in the presence of all the parties, and read 
aloud by the clerk, to the jury. The prisoner was thus afforded ample 
opportunity to poll the jury. It was then a public verdict spoken by the jury; 
and we can see no reason for disturbing it on that ground.

5. The next objection to the judgment is rested on the refusal of the court to 
grant the prisoner a new trial. The grounds relied upon in support of the 
motion besides same which have already been considered, were the affidavits of 
Thomas Mackin, one of the jurors, and of Farmer. The affidavit of Mackin 
states, that he would not have consented to the verdict of guilty in this 
case, "but upon the drawing up and signature by the jury of the communication 
addressed to and received by the court recommending a new trial, and that he 
believed said letter would have a great influence upon the mind of the court." 
We forbear all comment upon the singular ground taken by this member of the 
jury for his verdict. He does not state that he entertained doubts of the 
guilt of the prisoner, or that he was moved by any other consideration than 
the hope or expectation that the court would set aside what he and his fellows 
had solemnly and deliberately agreed upon. This is not ground, however, for 
setting aside the verdict. The letter of the jury was one thing, and their 
verdict another. Their verdict was upon oath. If there were reasons known to 
them sufficient to ground a new trial, then the verdict should not have been 
rendered. The letter was inconsistent with the verdict, and the latter must 
prevail. But be this as it may, the court had no authority to notice the 
affidavit of the juror which tended to impeach his conduct and repudiate his 
verdict. It is not competent for one of the jury to prove the misbehavior of 
his brethren. Dana v. Tucker, 4 Johns. Rep. 486. Nor can the affidavit of 
jurors be received to impeach their verdict. Ibid. This is a well settled 
rule, and so settled as we conceive upon the clearest principles of justice 
and public policy. If it were otherwise, there would be opened the widest door 
for protracted litigation, fraud, and perjury. We are not at all satisfied 
with the reasoning of Judge Whyte in the case of Crawford v. The State, 
reported in 2 Yerger. His conclusion is not warranted by the authorities to 
which he refers, for we find Lord Mansfield deciding against the admissibility 
of such proof in all the cases cited, except the one which arose a short time 
after he came to preside in the court of king’s bench. But the case decided by 
Judge Whyte was an extreme one, the jurors then declaring that they did not 
believe the prisoner guilty. The affidavit of Farmer stated simply that the 
prosecutor told him that there was a bill of sale to the prisoner for the 
negro he was charged with stealing, that the bill of sale was mailed and 
directed to affiant at Natchez with the view of getting him, affiant, to 
establish the verity of it, and that he further inquired of affiant, whether 
he had received it, to which he answered that he had not. And this is all he 
states. This was addressed to the court as a reason for a new trial on the 
ground of newly discovered evidence. But it does not state that this fact was 
not known to the prisoner before the trial. It does not show at what time the 
prosecutor communicated the information, whether before or after the trial. It 
is not accompanied by any affidavit of the prisoner himself of the fact. It is 
a naked statement of a fact furnished by the prosecutor, who appears to have 
been the owner of the slave. Can it be possible that the prisoner could have 
gone to trial on a charge so deeply affecting his reputation, and in which his 
life must be the forfeit of his conviction, without having insisted upon time 
to procure testimony so important to his defence as a bill of sale, 
establislnug his title to the property? But he does not offer any statement of 
his own to explain what certainly deserves explanation. If he had an authentic 
bill of sale to the slave, he surely could not have been ignorant of it, and 
if it was out of his possession, he should have notified the court of the 
fact, and moved continuance of his cause until he could procure it. But it 
does not appear from this affidavit where it now is, nor does the witness 
profess to state that such a paper in fact exists. How was it sent to him? By 
mail. For what purpose? He says that he might establish the verity of it. But 
how could he establish its verity? If he was a subscribing witness, or had 
seen it, he need not have depended, as it seems he did, on the information of 
the prosecutor. But he does not furnish the court with any ground for any 
expectation he has, that the paper can ever be procured, or used in the event 
of a new trial. It is totally insufficient.

6. It is next urged, that the court erred in refusing to notice, without 
affidavit, facts which transpired under the eye of the court. The only 
criterion furnished us of what these facts were, is the statement in the bill 
of exceptions, that they were those set forth in some of the reasons filed in 
support of the motion for a new trial. And yet what they were, we cannot yet 
tell, unless they be the affidavits of Mackin, the juror, and of Farmer which 
have just been noticed. It it impossible for this court to decide upon such an 
objection. The general statement that they were facts which had been offered 
in support of some of the reasons filed for a new trial is not sufficient. It 
is incumbent on the party who excepts to a decision of a court to place in his 
bill of exceptions the precise ground of exception. But this can only be done 
by embodying in the bill the facts on which the exception rests. This is not 
done, and we should be acting upon a very loose principle to decide under such 
circumstances that there was error in the action of the court in this case.

7. It is also objected, that the verdict is general, not referring to the 
particular count on which it was rendered. This is totally unfounded. A 
general verdict of guilty will be sustained, though all the counts in the 
indictment be bad but one. Chitty’s Crim. Law, 640.

But both the counts in this indictment are good under the statute, and are 
properly framed.

Let the judgment be affirmed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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