
    Whittington Owens v. State of Mississippi.
    1. Criminal Law. Witness. Inducement to testify.
    
    Where a state’s witness, wbo bad been convicted of tbe crime, stated upon cross-examination on tbe trial of bis co-defendant that no inducement bad been offered him to testify as be bad done, the state should not be permitted' to prove tbe truth of tbe statement by tbe prosecuting attorney.
    2. Same. Murder. Accessory before the fact. Code 1892, § 950. Sudden altercation. Instruction.
    
    Where the state proceeds in a murder case on tbe theory that tbe defendant was an accessory before tbe fact (under tbe statute, code of 1892, § 950, a principal) and bad armed and instigated an hireling to aid two other persons in committing tbe murder, it was error to refuse defendant an instruction, there being testimony of which to predicate it, directing tbe jury to acquit, if they believed from tbe evidence that tbe hireling killed deceased, not in pursuance of defendant’s instigation, but alone because of a sudden and unexpected altercation between deceased and one of tbe two persons mentioned.
    
      3. Same. Verdict. Ambiguity.
    
    Where the terms of a verdict are ambiguous the court is authorized and under a duty to have the jury make their meaning plain.
    4. Same.
    In a murder case, the jury being authorized upon conviction to- fix defendant’s punishment at imprisonment for life in .the penitentiary, a verdict in these words, “We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the- court,” is insufficient .to support a judgment sentencing defendant to the penitentiary for life, each juror having stated upon the return of the verdict, in response to the court, that he did not mean that a death sentence should be imposed and most of them that the word “term” in the verdict meant less than life imprisonment.
    From tbe circuit court of Marshall county.
    Hon. Perrin H. Lowrey, Judge.
    The appellant, Owens, was indicted by the grand jury of Lafayette county, for the murder of one John A. Montgomery, was tried and convicted and sentenced to death. He appealed therefrom to the supreme court and the conviction was reversed. See Owens v. State, 80 Miss-., 499. The former report of the case gives a statement of the facts. The reader, however, is referred as well to the case of Matthis v. State, 80 Miss.,-491, and to the footnote on page 493 of said volume. After the remand of the case, a change of venue was granted Owens on his application, to Marshall county, where he was again tried and convicted, from which, his motion for a new trial having been overruled, the present appeal was prosecuted by him to the supreme court.
    Owens, appellant, was also indicted by the same grand jury for the murder of Hugh Montgomery, a brother of decedent in this case, and he was also indicted for the murder of one Williams, and was tried and convicted of this last crime and appealed to the supreme court. See Owens v. State, post, 31.
    Matthis, who had been convicted of the crime (and since hanged), testified in the present case for the state. On his eros'sf-examination, lie stated that no inducement bad been offered bim to testify as be bad done. . Tbe state, over tbe objection of defendant, was permitted to prove tbe truth of the statement.
    In tbe course of his examination, Matthis further testified, on cross-examination, tbat “I went into'the room with the two Montgomerys for them to go to bed, and Hugh Montgomery bad taken a pistol away from me in August, and put me in jail, and gave tbe pistol to the jailer; John Montgomery got to bed first, and I held the light for them to get to bed, and sat down on tbe footboard, and Hugh sat down and talked, and finally pulled off his coat, and pulled off a scabbard and laid it under his pillow, and then pulled off bis pants, and I asked Hugh to ‘let me see tbat pistol you pulled off tbe scabbard,’ and he says, ‘I will show it to you some other time,’ and I said, ‘Let’s see it now.’ I had seen tbe handle, and knew it was mine. I says, ‘You told me a damned lie about tbat pistol; you liavé got it, and I want it;’ and be grabbed around for bis pistol, and .says, ‘God damn you, I will take you to town tonight,’ and as be done that tbe negro (Orlandus Lester) jumped in tbe door and shot Hugh on tbe side of tbe head, and John was reaching around for his pistol, and be shot John.”
    Tbe fifteenth instruction asked for defendant and refused was as follows: “The court further instructs tbe jury that, although they may believe from the evidence that the witness Lester went to tbe bouse of defendant of bis own accord, or was sent there by Matthis on the night of the killing of said officers, and tbat he (Lester) told defendant that tbe officers were at Matthis’ bouse, and tbat be, or be and Matthis, wanted to. kill said officers, and that the defendant gave Lester some buckshot sh ells and told bim to go back to Matthis’ bouse and kill said officers, and tbat tbe negro (Lester) did go back to tbe house of Matthis, where tbe officers were, and attempted to kill said officers, but was prevented by said Matthis from doing so, and .that afterwards, and on the same night, Matthis and Hugh Montgomery engaged in a quarrel about a pistol, and that while they were so engaged the negro (Lester) shot and killed said officers, not because Owens had told him to do so, or had in some way influenced him, but alone, because of the trouble between Matthis and Hugh.Montgomery, then the jury should find the defendant not guilty.”
    The opinion of the court contains a further statement of the' facts.
    
      Stephens & Stephens, for appellant.
    It was error to permit the district attorney to go upon the witness stand in order to bolster up his own witness.
    There had been no charge that anyone, much less the state’s attorney, had bribed or persuaded Matthis to testify. 1 Green-leaf, 469; Madden v. State, 65 Miss., 116; Head v. State, 44 Miss., 151, and Williams v. State, 19 Miss., 555.
    The fifteenth instruction asked by defendant, and which was refused by the court, should have been given.
    Owen is not to be held responsible for what was done in á difficulty that was wholly disconnected with the plot and plan made by him and the negro. Although he may have planned and arranged with Lester to kill the Montgomerys, and Lester left him fully intending to do so, yet if Lester decided not to kill the men, but afterwards did MU them, not because of anything Owen had said or done in the matter, but for another reason, then Owen was not a party to the affair.
    The instruction simply carries the idea that if the negro abandoned, from any cause, the design to kill these men according to Owen’s instructions or advice, but afterwards killed the men because of some other reason or influence, then the jury must find the defendant not guilty. The testimony of Matthis warrants the theory that Lester shot the officers because he, Matthis,' was engaged in a difficulty with them.
    It is the right of a defendant to have the jury instructed upon any theory that may be reasonably deduced from, the evidence, and the refusal of this instruction was reversible error.
    
      Tbe verdict of tbe jury .in this case is an absolute nullity; it is not such a verdict as the law warrants or recognizes in cases of this kind; no legal judgment could rightfully be pronounced upon it.
    The court ought, either to have required the jury to put their verdict in legal form, or have declared a mistrial. At best it simply amounted to a mistrial, 'for there was no unanimity of consent among the jurors; and therefore no absolute and complete finding, for unanimity of consent is declared to be indispensable to the sufficiency of a verdict.
    The written verdict was cloudy and ambiguous, and in attempting to clear it up and rid it of its ambiguity, as it Avas the duty of the court to do, it was unmistakably shown that the jury had not really agreed upon any verdict at all.
    This court has held that the thing to be ascertained is the will and intention of the jury. The words employed in a verdict are the mere vehicles for conveying the jury’s will; and where there are words in the verdict raising an apparent cloud as to what the actual intent and finding of the jury is, the court should dispel that cloud and have the jury make plain their meaning.
    The oral statements of the jurors show beyond peradventure that they would never have returned a verdict under which they knew Owen would have either to hang or be imprisoned for life. Smith v. State, 75 Miss., 542, and authorities therein cited; Ohamberlain’s Best on Evidence, sec. 591; Clark’s Criminal Procedure, 483, and cases cited; 43 Ala., 320; Davis v. Searcy, 79 Miss., 292.
    
      Monroe McOlurg, attorney general, for appellee.
    The district attorney testified in response to the questions put to Matthis that he had been promised clemency if he should testify in the case against Owens. It was not only proper for the district attorney, who prosecuted for the state, to relieve the minds of the jury as to any supposed misconduct on his part, but it was competent rebuttal testimony tending to show the falsity of that proposed by the defendant appellant. There is no reversible error found in this proposition. At most, it went to the credibility of the witness Matthis, and was, in fact, worth nothing more either for or against the accused Owen, who was not on the stand, or otherwise making a confession. It was irrelevant matter. Madden’s Gase, 65 Miss., 116. That case was not reversed because of the admission of such irrelevant testimony, and doubtless would not have been reversed at all but for the testimony admitted as to public sentiment. .There is nothing in Williams’ Gase, 19 Miss., 555, touching this point.
    “What do you mean by your verdict?” This question was ’addressed to the proposition as to whether the jury meant to say “guilty” or “not guilty.” It cannot be lawfully otherwise propounded. Not a single juror of the twelve put upon a public gibbet in the presence of the defendant, counsel, interested friends, and a curious public,, stated that he opposed a verdict of guilty — all were agreed on that — but each stated what he thought the law ought to be in such case. The trial judge let his foot slip in going into this unauthorized procedure, nevertheless found the correct meaning of the verdict twice rendered; namely, that the jury was unanimous in believing the defendant guilty as charged, but that none of them desired that he should be hung. He merely announced the law in such case by pronouncing the life imprisonment sentence. The purpose and intent of the law was certainly reached. Guilty of murder, but not to be hung. The law fixed the life sentence in such case, and the court so correctly ruled in his judgment. The legal effect of the verdict was unquestionably announced by the court. This case will not be reversed because the members of the jury had divergent notions as to what the penalty should be. The jury was unanimous in a verdict of guilty as charged, and that the accused should not be hung. All else were surplusage —■ almost judicial folly. The verdict was responsive to the issue. Smith’s Gase, 75 Miss., 551; Penn’s 
      
      Case, 62 Miss., 450; Traube’s Gase, 56 Miss., 153; Timmon’s Gase, 56 Miss., 786; Bedell’s Gase, 50 Miss., 492; James’ Gase, 55 Miss., 57; John’s Gase, 78 Miss., 665; McGuire’s Gase, 76 Miss., 504.
    On the single refused instruction there can be no possible substantial complaint. The other instruction granted at the request of the accused, especially the fourteenth, covered the whole case, and presented the full defense, even the theory com tained in the refused instructions.
    Argued orally by JI. D. Stephens and W. V. Sullivan, for appellant, and by William Williams, attorney general, for appellee.
   Wiiiteield, O. I.,

delivered the opinion of the court.

It was error to permit the district attorney to testify that no inducement had been offered Matthis to testify against Owens. Matthis had expressly stated, himself, when asked, that no inducement had been held out. The only possible effect of this testimony was to permit the state to bolster the testimony of its witness, Matthis, in this unwarranted way. This has been expressly condemned twice by this court. Madden v. State, 65 Miss., 176; 3 South., 328, where the court said: “On the trial, one Morris, indicted for the same offense, was introduced by the state as a witness. He distinctly and fully testified to the guilt of' the appellant on direct examination. On cross-examination he stated that some days after the burglary, and while he was confined in jail, he sent for the attorneys who had been engaged to prosecute the parties charged with the crime, and, being informed by them that any one of the number who would divulge all the facts would not be prosecuted, he determined, as he says, ‘to make a clean breast and come clear.’ To break the force of this statement, the state was permitted, over the objection of appellant, to prove by the counsel referred to by the witness, that no such promises were made. This should never have been permitted. Whether the statement made by the witness on cross-examination was true or untrue was not relevant to the guilt or innocence of the defendant. The single purpose of the state in contradicting that statement was to break its force and effect as going to show that the inculpating testimony delivered on direct examination had been induced by promises of immunity from punishment. It was an effort to support the evidence given on direct examination, and to discredit that drawn out on cross-examination, and it was not competent to do either. ' A witness cannot be corroborated by proving that on other occasions he had made statements conforming to his testimony, for such statements are but hearsay; nor can one who introduces a witness directly attack his credibility by proving facts irrelevant to the issue.” And Williams v. State, 79 Miss., 555; 31 South., 197.

It was error to refuse the instruction (numbered 15) asked by the defendant. The idea presented in this instruction is that, if Lester killed the officers, not because of anything Owens had told him to do, but merely and solely to protect Matthis, the appellant would not be responsible for that; and the testimony of Matthis furnished the defendant with a basis on which to predicate his right to this instruction. The fourteenth instruction granted for the defendant does not cover this precise proposition, and the refused instruction, being a correct proposition of law, ought to have been granted. The defendant has the right to have the jury instructed upon any theory that the testimony may reasonably present. It must be admitted that Matthis’ testimony was certainly sufficient to justify the giving of this instruction. As to the truth or falsity of Matthis’ testimony in this connection, we, of course, make no comment.

The jury first returned into court this verdict: “We, the jury, find the defendant guilty as charged, and ask for the mercy of the court.” This clouded verdict needed to be cleared up, as held in Smith v. State, 75 Miss., 556; 23 South., 260. This jury had been fully instructed as to the form of the verdiet, as had the jury in the Smith Case, and what was said in the Smith Casereviewing the authorities on that proposition (Penn v. State, 62 Miss., 477; Shines v. State, 42 Miss., 333; and Gipson v. State, 38 Miss., 310), is directly in point in this case. We stated then, and now reaffirm the proposition: “The thing to be ascertained is ‘the will and intention of the jury’ in their finding. That is what the court should know, that the proper sentence of the law may follow upon their actual finding, not upon what is not their actual finding. Of course, the legal effect of the verdict in this case, in the words used, is, by legal construction, death. But the word's employed in a verdict are the mere vehicle for conveying the jury’s will; and where there are words in the verdict raising an ‘apparent cloud’ as to what the actual intent of the jury is, the court, whether asked or not, should ‘dispel that cloud,’ and. have the jury make plain their meaning. And the court, of course, had the amplest power to do this, and, if necessary, to send' them back to the jury room to render a clear and unambiguous verdict; and most especially should this ample power be exercised in a capital case."

Hollowing this announcement, in 75 Miss., 23 South., the learned court below sent the jury back to put their verdict in proper form, the court having first asked the jury what they meant by the “mercy of the court,” and a member of the jury having said, “We thought he should have been put in the penitentiary.” This occurred at 6 o’clock in the afternoon, and at 6.40 the jury returned a second verdict in the following words: “We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the court.” When this verdict was rendered, one of the jurors, Simpson, said: “I would like to explain. Before we assessed any time, we knew we could not fix any length of time, and we thought by asking the mercy of the court it would be all right; we did not have the form properly drawn up.” The jury did have the forms properly given in the instruction, and, if the learned circuit judge had simply directed the jury to go back and read the instruction as to the form of their verdict, and then render a proper verdict, it would have been a very easy thing for the jury to have done that, if they had really agreed on a verdict; or if, as the record discloses was the fact, they had not really agreed on any verdict, a mistrial could have been entered. "When this second verdict was rendered, the court first polled the jury in the usual way, and then each juror was asked what he meant by the verdict. J uror Frazier said that he “meant for the judge to fix the number of years, 'even if it extended to the life sentence”; Juror Higgins said that he “meant from twenty to twenty-five years in the penitentiary, and that he did not mean life imprisonmnent in the penitentiary” ; Juror Puryear said that he “meant from twenty to twenty-five years, and did not mean life imprisonment” ; Juror Wade said he “meant to leave the term of years to the judge, even if it meant life imprisonment” ; Juror Eason said the same thing; Juror Orawley, that he “did not mean life imprisonment, but left it subject to the judge as to time”; Juror Hart said that he “meant about twenty-five years”; Juror Mobly said he “left it to the judge as to time, but did not mean life imprisonment,” adding, “We did not expect it to be made for life is the reason we asked the mercy of the court”; Juror Hardin said, “I could not hang him, according to my view of the testimony, and thought he deserved ten or fifteen or twenty years in the penitentiary. I did not think, he deserved life imprisonment”; Juror Morton said that he “left it to the court, except that he did not mean life imprisonment” ; Juror Simpson said that he “left the time to the court, but intended a very short term — five, ten, or fifteen years — did not mean life imprisonment”; J uror Sharp said that he “meant twelve months in the penitentiary; he did not mean life imprisonment.” Each and every one of the jury, asked by counsel for the state and for the defense, expressly stated that no one of the jury meant that the defendant should be hung. The court seems to have directed the verdict to be entered up in the following form: “We, the jury, find the defendant, Whit Owens, guilty as charged in the. indictment, and fix the penalty at imprisonment in the state penitentiary for life.” It is perfectly obvious that no such verdict was rendered by tbe jury, and it is equally obvious that tbe jury bad not agreed upon any verdict at all.

To show what an utterly clouded verdict it was, we have, on tbe one band, tbe action of tbe court directing tbe verdict to be entered in tbe form we have just given, and sentencing tbe prisoner upon the verdict to imprisonment in tbe penitentiary for life; and we have tbe district attorney, on tbe other band, actually excepting to tbe action of tbe court in not sentencing tbe prisoner to be banged. It is plain that tbe court did what be did because be thought tbe legal effect of tbe -verdict was imprisonment for life. It is also plain that tbe district attorney based bis exception upon tbe idea that tbe legal effect of tbe verdict was a simple finding of guilty of murder, upon which tbe death penalty should follow. No more conclusive proof of tbe utterly clouded state of this verdict could be furnished than tbe spectacle of tbe judge and tbe district attorney disagreeing as to what tbe verdict meant. Tbe only strange thing is bow there could be any difference of opinion as to tbe real nature of tbe verdict. It seems to us perfectly plain that tbe jury bad not agreed upon tbe number of years, differing about that from twelve months to life imprisonment, and hence that they bad really reached no legal verdict upon which tbe judgment of tbe law could follow. It is tbe duty of tbe jury to sentence tbe prisoner to life imprisonment, where that is to be done- — -not tbe court. Tbe learned judge below was entirely correct in refusing to enter tbe death penalty when every member of tbe jury said that was not bis verdict; but be erred in treating tbe verdict as a sentence for life imprisonment at tbe bands of tbe jury. Tbe matter was of exceedingly simple solution. It would have been perfectly proper for him to have taken from tbe charges for tbe state tbe one as to tbe form of their verdict, and directed the jury to retire, read that charge, and put their verdict in form. Jurors are men unlearned in the law, and there could be no possible objection to the court’s selecting and handing to them the charge as to the form of their verdict when form was the only thing involved. Had this been done, the jury would very soon have disagreed, or returned a proper verdict. From the testimony, it would seem that they would doubtless have disagreed. At all events, the one result or the other was certain.

We are of the opinion that this verdict was not a legal verdict— not one upon which the judgment of the court could have been legally pronounced. The precise case was decided in Weatherford v. State, 43 Ala., 320, where the court said: “The appellant was indicted in the city court of Mobile for the crime of rape. On the trial, the jury returned a verdict in the following words, to wit: ‘We, the jury, find the prisoner guilty, as charged in the indictment, and sentence him to imprisonment in the penitentiary.’ Before he was sentenced by the court, the prisoner, by his counsel, moved to arrest the judgment for the following reasons: ‘(1) Because the verdict rendered in the case by the jury is contrary to law, and does not declare what the punishment shall be. (2) Because the court cannot pass sentence upon the verdict rendered in the case, the court having no power or discretion to fix the length of time of imprisonment, and the jury having to’fix the same, it being their province to do so.’ The court overruled the motion, and sentenced the prisoner to hard labor in the penitentiary for his natural life. The prisoner excepted to the ruling and sentence of the court. The judgment of the court was suspended, and the case is here for revision. Section 3661 of the code provides that ‘any person who is guilty of the crime of rape, must, on conviction, be punished, at the discretion of the jury, either with death, or by imprisonment in the penitentiary for life, or by hard labor for the county for life.’ The entire punishment for this crime is in the discretion of the jury, and the court has nothing to do in the matter, but to pronounce the sentence of the jury. The attorney general argues that the law determines the duration of the punishment, where it is either in the penitentiary, or hard labor in the county. This is true, hut, notwithstanding, it must be found by the jury, and not fixed by the court. Who can tell but, if the jury had been instructed that imprisonment in the penitentiary must be for life, they might not have determined to inflict the milder punishment, to wit: hard labor for the county for life ? But why speculate about this matter? The wiser and safer course is to do just what the law requires, and to do it in the way the law requires. We have determined at this term, in the case of Edgar v. State, a case Trery like this, that the jury must, by their verdict, determine both the character and extent of the punishment.”

What is said in this case about the entire punishment being in the discretion of the jury, under the section cited from the Alabama code, applies perfectly to that part of a sentence in a murder case under our law which fixes the punishment at imprisonment in the penitentiary for life. Whether that shall be the sentence is for the jury, and not the court, to say.

Two things were made certain by the testimony elicited from the jurors in this case: First, that not a single juror meant by his verdict that the death sentence should be imposed; second, that ten of the jurors meant he should not be imprisoned in the penitentiary for life. We think it is equally certain that, not meaning he should be hung, and differing about how long he ought to be imprisoned in the penitentiary — from a twelve months’ period to a life period' — the jury had never really agreed upon any verdict. Had the court pursued the course indicated, there would have been a verdict upon which judgment could have been legally pronounced, or there would have been a mistrial. It was the duty of the court, under the circumstances, to have required the jury to go again to their room, read the charge as to the form of the verdict, and then return — if they agreed — a legal verdict in proper form.

There are other errors complained of, but, as they are such as would not likely occur again, we have noticed only those which are vital.

Reversed and remanded.  