
    Louis Dennis v. State of Mississippi.
    [50 South. 499.]
    Criminal Law and Procedure. Murder. Jury. Insanity of juror after beginning of trial. Effect. Mistrial. Course of procedure.
    
    Where in the progress of a prosecution for homicide, and after several witnesses had been examined, one of the jurors became insane, a mistrial should have been entered, a trial de novo granted and the defendant given the right to exercise the full number of peremptory challenges allowed by law.
    FROM the circuit court of Madison county.
    HoN. Wiley H. Potter, Judge.
    Dennis, appellant, was indicted by the grand jury of, second district, Hinds county for the murder of one John T. White, was tried, convicted and sentenced to suffer death. He appealed to the supreme court and the conviction was reversed and a new trial granted. See Dennis v. State, 91 Miss. 221.
    After the reversal of the conviction he applied for bail and the chancellor granted the application. The state appealed to the supreme court from the judgment allowing bail, but the judgment was affirmed. See Ex parte Louis Demvis, 91 Miss. 857.
    Thereafter a change of venue was granted transferring the cause from the circuit court of, second district, Hinds county to the circuit court of Madison county, where defendant was again tried and convicted of manslaughter, and defendant again appealed to the supreme court — the present appeal. The facts are fully stated in the opinion of the court.
    
      Williamson &■ Wells and W. J. Oroom, for appellant
    There is no statute in this state which authorized the court to adopt the course which it did, over the special objection of the defendant, and the question must therefore be determined by the principles of the common law; and authorities from the American courts construing special statutes have no application here.
    In a recent case decided by the supreme court of Florida, in 1900, the precise question involved here was before the court and the following language was used:
    “The common law rule is that in a trial for felony, if a juror, the judge or the prisoner, become incapacitated by illness or death, after the jury is empanelled and sworn in chief, the proper course to pursue is to declare a mistrial, and begin de notfo. In the case of a juror falling ill after being sworn in chief, there is no impropriety in utilizing the remaining eleven on the new trial, but they should he re-tendered to the prisoner, and re-sworn, and the defendant has a right to his full complement of peremptory challenges just as though there had been no prior empanelment of a jury in his cause, and he has the right to peremptorily challenge any of the eleven first chosen upon their re-tender to him.”
    “Some of the American courts hold that in such cases the discharge of one juror after being sworn, but before any evidence is introduced, does not necessitate the discharge of the remaining eleven, nor the beginning of the trial de novo; but such holdings are planted upon special statutory enactments and have no force as authority here where there is no such statute and where the common law prevails.” West v. State (Fla.), 28 South. 430.
    
      If the judicial determination of the point involved, by the Florida court, is worth anything, it would seem that we need to cite the court to no other authority, since this is clear, emphatic, and decides the precise question.
    In the case at bar, the trial had proceeded for three days and the jury had not only been sworn in chief, but numerous witnesses had testified, before the jury. In the selection of the jury, the defendant had exercised ten of the peremptory challenges allowed him by the statute. One of the jurors became insane during the progress of 'the trial. The defendant thereupon moved the court to declare a mistrial, discharge the jury and give him a trial de novo, which motion was overruled. The court discharged the insane juror and proceeded to substitute another juror in his place. The remaining eleven jurors were never re-tendered to the defendant. Thereupon the defendant moved the court to allow him to exercise his right of challenge as to the eleven jurors remaining, which motion the court overruled. Thereupon the defendant moved the court to be allowed his twelve peremptory challenges in the selection of. the one juror to be substituted for the insane juror and this motion was overruled, and the defendant was compelled to proceed to the selection of the substituted juror, and was only permitted to exercise two peremptory challenges, which remained to him from the former trial.
    ■ All of this was done over the objection of the defendant, not interposed in a general way, but specially, and special bills of exception were taken-to the action of the court.
    In pursuing this course, the lower court' violated every rule of the common law on this subject, and, there being no statute in this state which authorized such a course, it was in violation of law, and denied to the defendant his rights under the law.
    As upholding our contention in this matter, we cite the court to the following eminent text book authorities: Thomp. and ffer. Juries, sec. 213 and citations! Proffatt Jur. Trials, Chap. 11, sec. 48!; Thompson on Trials, vol. 1, sec. 90 and citations; 1 Bish. New. Orim. Law, sec. 1014; Kinloche’s case, Lost. Or. Law, 16; Weddenheimer’s case, Fost. Or. Law, 22.
    In further support of our contention we cite the following: United States v. Haslcell, 4 Wash. O. 0. 402, Fed. Oases No. 15,321; State v. Vaughn, 23 Nev. 103; Garner v. State, 5 Terg. (Tenn.) 160; State v. Curtis, 5 Humph. 601; Commonwealth v. Knapp, 20 Amer. Dec. 534; Jackson v. State, 51 Ga. 402; Stirling v. State, 15 Tex. App. 249; State v. Scruggs, 115 N. O. 805; Commonwealth v. McCormick, 130 Mass. 61. In the Jefferson case, 52 Miss. 167, this court gave as some of the reasons for refusing to disturb the judgment that the objection taken was general. In the instant case it was special.
    The accused in Jefferson’s case did not claim at the time a continuance of the trial. In this case the defendant did make this claim. Jefferson did not claim the privilege of re-challenging the other eleven jurors. In this case the defendant did claim this privilege and it was denied to him. All of these things which J efferson did not do whereby his case was affirmed, the defendant in this case did do, whereby his case should be reversed; upon the authority of the J efferson case.
    
    The lower court further erred in the so-called new trial, which was claimed to have been given in this — -the same witnesses were not re-introduced, and the record in this case presents the curious anomaly of a conviction where eleven of the jurors heard the testimony of several witnesses whose testimony was not heai’d at all by one member of thé jury.
    
      George Butler, assistant attorney-general, and Bobert N. & Hugh B. Miller, for appellee.
    Defendant insisted that when the insane juror was taken off that the trial should be begun over again, a new venire drawn, and an entirely new jury empaneled, but the court declined to do so and proceeded to substitute á juror in place of the insane juror.
    Every single, solitary witness who testified to any material fact was re-introduced from tbe beginning. After tbe substitution of tbe new juror, tbe state began tbe evidence anew, and went over it all again.
    When tbe first jury, including tbe man wbo became insane, bad been completed, tbe defendant still bad two peremptory challenges left, and was therefore in tbe attitude of having accepted voluntarily all twelve of the jury including tbe man wbo became insane; not a singe one of them bad been forced on him over bis ojection, and be bad two challenges left.
    When tbe insane man was set aside tbe court held that tbe other eleven having been accepted, there was no reason why they should be set aside;, and the case begun de novo as to tbe jury, and this ruling of tbe court is tbe only question that admits of cavil in tbe case.
    This judgment ought not to be reversed on this account if there has been no injustice or prejudice to tbe defendant by this action of the court. It appears that tbe court asked each of tbe remaining eleven jurors if be bad discussed tbe case in the presence of bis fellows or said or done any thing to influence tbe verdict in any way, and each answered that be had not.
    A statute is' unnecessary to authorize tbe court to pursue the one course or the other, either discharge the whole panel or substitute one juror, where tbe utter incapacity of one juror occurs. If it be a question of power, then tbe statute would do no good, because tbe court has tbe power to direct and control all matters of procedure in the case. If tbe court hasn’t tbe power then tbe statute could not give it tbe power under tbe constitution.
    This matter is a mere question of procedure. It has been uniformly held, that where tbe incompetency of a juror occurs, either before or after evidence has been introduced, tbe court has power to discharge tbe jury entirely, in such case, and begin tbe trial de novo. There is not a modem authority that can be cited bolding to tbe contrary. Lord Cbke announced the law to be that a jury once sworn could never be discharged
    
      without a verdict. And the result of this doctrine, caused the jury to be bauled about in carts until they agreed. Nobody professes that this is now the law in any civilized land.
    Whether or not, after evidence has been heard, the whole jury should be discharged and a new one organized, or one single juror should be substituted, is, as held by a number of authorities, a matter resting in the discretion of the court; and the exercise of that discretion is reviewable when it appears that in adopting either procedure the court has done something prejudicial'to the rights of the defendant. The true answer to the ancient rule is sec. 22, Constitution of 1890.
    It must be conceded that the rule is absolutely universal that where the disqualification of a juror appears, as by sickness, death or insanity, or any other cause which incapacitates the juror, before evidence is introduced, the court may arbitrarily substitute another juror. See Jefferson’s case, 52 Miss. Y6Y; Robert’s case, Y2 Miss. Y28.
    In this last case one witness had actually been examined and the defendant refused to consent to the discharge of the juror, ,and the substitution of another.
    If this power of the court be conceded, then, why has’nt the court the power to • substitute a juror after evidence has been introduced? No possible injustice could come to the defendant, if the power was exercised in a manner in no respect prejudicial to his rights.
    Surely the power to substitute a juror and go on with the other eleven and a new juror cannot be reversible error, although an improper exercise of the power be granted.
    On the question of the right to substitute a juror, the authorities are divided, but none hold that substitution of an individual juror is reversible error.
    1Y Am. & Eng." Ency. of Law, 1258, states the rule thus: “"Where owing to illness or death of a juror it is impossible to proceed with the case, it is proper for the court to discharge the jury; and -this may be done though the statute authorizes tbe substitution of another juror for the one incapacitated to serve. In some jurisdictions the practice is to discharge only the juror incapacitated and to substitute another in his place. Whether the single juror or the jury as a whole shall be discharged, is apparently a matter within the discretion of the court.”
    In support of the text, in notes 3 and é, a vast array of authority is cited from England and from our own courts. To the same effect is the text on page 1260, where a large number of authorities are cited and the court will observe that the author of the Encyclopedia quotes our own cases of McGuire v. State; Jefferson v. State and Roberts v. State, as committing this court to the doctrine that it is within the discretion of the court to substitute one juror rather than discharge the whole wry-
    This authority states, that there are three different views on this question held in the courts of this country; — some holding that the entire jury must be discharged when one is disqualified after evidence taken; others that the court has power to substitute one juror in such case and go on, and others that the whole subject is a matter within the discretion of the trial court. 17 Am. & Eng. Ency. Law. 1260, and notes.
    Argued orally by Ben. H. Wells, for appellant.
   Whitfield, O. J.,

delivered the opinion of the court.

In the case at bar the trial had proceeded for three days, and the jury had not only been sworn in chief, but numerous witnesses had testified before the jury. In the selection of the jury the defendant had exercised ten of the peremptory challenges allowed him by tire statute. One of the jurors became insane during the progress of the trial. The defendant thereupon moved the court to declare a mistrial, discharge the jury, and give him a trial d& novo, which motion was overruled. The court discharged the insane juror and proceeded to substitute another juror in his place. The remaining eleven jurors were never retendered to the defendant. Thereupon the defendant moved the court to allow him to exercise his right of challenge as to the eleven jurors remaining, which motion the court overruled. Thereupon the defendant moved the court to be allowed his twelve peremptory challenges in the selection of the one juror to be substituted for the insane juror, and this motion was overruled, and the defendant was compelled to proceed in the selection of the substituted juror, and was only permitted to exercise two peremptory challenges, which remained to him from the former trial. All of this was done over the objection of the defendant, not inteiposed in a general way, but specially, and special bills of exception were taken to the action of the court. This was fatal error. See Thomp. & Mer. Juries, 273, and citations; Proffatt, Jur. Trials, p. 487, c. 11; 1 Thompson on Trials, 90, and citations; 1 Bish. New Crim. Law, 1014; Kinloche’s case, Post. Crim. Law, 16; Weddenheimer’s case, Post. Crim. Law, 22; also United States v. Haskell, 4 Wash. C. C. 402, Ped. Cas. No 15,321; State v. Vaughn, 23 Nev. 103, 43 Pac. 193; Garner v. State, 5 Yerg. (Tenn.) 160; State v. Curtis, 5 Humph. (Tenn.), 601; Commonwealth v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec. 534; Jackson v. State, 51 Ga. 402; Sterling v. State, 15 Tex. App. 249; State v. Scruggs, 115 N. C. 805, 20 S. E. 720; Commonwealth v. McCormick, 130 Mass. 61, 39 Am. Rep. 423. In the Jefferson case, 52 Miss. 767, this court gave as some of the reasons for refusing to disturb the judgment, that the objections taken were general. In the instant case they were special. The accused did not claim at the time a continuance of the trial. In this case the defendant did make this claim. Jefferson did not claim the privilege of re-challenging the other eleven jurors. In this case the defendant did claim this privilege, and it was denied to him. All of these things which Jefferson did not do, whereby his case was affirmed, the defendant in this case did do.

The lower court further erred in the so-called new trial, which, was claimed to have been given in this: The same witnesses were not introduced, and the record in this case presents the curious anomaly of a conviction where eleven of the jurors lieai’d the testimony of several witnesses, whose testimony was not heard at all by one member of the jury. In this state there is no statute on this subject, and the common law, of course, prevails. Under the common law there is no room for discussion. The court should have begun de novo, and the defendant should have had the whole jury, as reconstituted for the new trial, tendered to him, with the right to exercise all his challenges given him by the law. We approve the statement of the true doctrine on this subject in the opinion of the supreme court of Florida in West v. State, 42 Fla. 244, 28 South. 430, where that learned court say: “The common-law rule is that in a trial for felony, if a juror, the judge, or the prisoner, becomes incapacitated by illness or death, after the jury is impaneled and sworn in chief, the proper course to pursue is to declare a mistrial and begin de novo. In the case of a juror falling ill after being sworn in chief, there is no impropriety in utilizing the remaining eleven on the new trial; but they should be retendered to the prisoner and resworn, and the defendant has a right to his full complement of peremptory challenges, just as though there had been no prior impanelment of a jury in his cause, and he has the right to peremptorily challenge any. of the eleven first chosen upon their retender to him. Some of the American courts hold that in such cases the discharge of one juror after being sworn, but before any evidence is introduced, does not necessitate the discharge of the remaining eleven, nor the beginning of the trial de novo; but such holdings are planted upon special statutory enactments, and have no force as authority here, where there is no such statute and where the common law prevails.”

We pass upon no other point in this case.

Reversed and remanded.  