Collins v. State

1. Criminal Law. Impartial jury. Oondupt of judge. Every accused, irrespective of his guilt or condition in life, is entitled to be tried by an impartial jury. 2. Same. .Where the presiding judge in the presence of the jury, before whom accused was to be tried by the charactér of the questions put to accused, brings her cause into contempt, accused is denied a trial before an impartial jury. 3. Same. The trial judge must use the greatest care to avoid prejudicing the cause of the state or the defense by his language or conduct. 4. Conduct on Judqe. Presumptions. The supreme court will not stop to inquire whether the jury was actually influenced by the improper conduct of the presiding judge; if his conduct might have prejudicially affected the jury, the conclusive presumption of the law is that it did so affect their verdict.

Appeal from the circuit court of Jones county. Hon. Paul B. Johnson, Judge. Thelma Collins was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. Search, I think, will hardly disclose a more glaringly oppressive deprivation of one’s right to a fair and impartial trial. She was arrested late in the forenoon of the 10th day of October and then informed for the first time of the indictment. - She at once had subpoenas issued for her witnesses, the only ones by whom she could establish her defense, and the sheriff had scarcely had time to get out of the court house with them before the case was called for trial. These witnesses, if she had been afforded an opportunity to have them present, would have made out a perfect defense. One of them, Bill Hinton, -would have sworn that he was present at the time Chas. Jacobs and Jack Welborne, the state’s witnesses, claimed she sold whiskey, and that she sold none. The other J. A. Shed, is her landlord, and would have sworn that she was not living’- at .the place where the- state’s witnesses testified the person was living when they bought the whiskey. This at least would have proved that if they bought whiskey from any one they were mistaken in the identity of the person who sold it. A more perfect defense could hardly be imagined, and yet the court denied her any time whatever to establish it, saying: “I am going to try the case to-day, if it takes till midnight.” He did indeed call the jurors to the box who had heard him browbeat her and insinuate improper motives for the presence of Bill Hinton at her house, and went through the form of convicting her, but it was no trial. If indeed it be called a trial, section 26 of the Constitution is a mockery. And this too immediately after the court had compelled her to take the stand and violate her right under said section not to give evidence against herself in the presence and hearing of the very jurors who tried her. And compelled her to answer when it could serve no purpose other than to prejudice the jurors against her defense, and force her to give up perhaps the only reason she might have had to remain silent at her trial. All this too after the court had before the same jurors browbeat her and by his manner and questions insinuated improper motives for the presence of Bill Hinton at her house. And all this was without any bearing on her application for a continuance and was heard by the jurors who also immediately heard him say, “I am going to try the case to-day, if it takes till midnight.” We most earnestly insist that if Bill Hinton is a white man and she is “a nigger’’ she was entitled to fair treatment and a fair and impartial trial. We think it unnecessary to cite authority hut out of the multitude of others with which the court is familiar, the following are especially in point: ■ Section.26, article 3 of the Constitution, wherein-it is said: “In all criminal prosecutions the accused shall have a right ... to have compulsory process for obtaining witnesses in his favor” and a fair trial. She was denied the right to have an opportunity to have even one -subpoena served and returned. Cade v. State, 50 So. Rep. 554, is a much stronger case than this and is exactly in point; Montgomery v. State, 85 Miss. 330; Whitt v. State, 85 Miss. 208; FLattox v. State, 80 Miss. 186; Fooshee v. State, 82 Miss. 509; Leroy White v. State, 45 So. Rep. 611. The only other error assigned is that she was not tried by a fair jury because the members of this jury had heard her testimony taken on the motion for a new trial. There is nothing in this point at all, and I will only cite the case of Whitehead v. State, 52 So. 250, which should settle the point raised by counsel here.