Defendant Wayne Turner, charged with murder, was convicted and sentenced to death. He has appealed, relying for reversal on a bill of exception taken to the overruling of his motion for a mistrial.
The bill of exception, signed by the trial judge, discloses that the motion for a mistrial was made under the following circumstances:
Both of these deputies testified on the hearing of the motion for a mistrial, and upon being questioned by the court they testified, as disclosed by the trial judge's per curiam, "that they had never discussed anything having any bearing on the case with any member of the jury; that they had never discussed the case with each other or other deputies in the presence of the jury; and that they had never heard any aspect of the case discussed by any member of the jury". The trial judge concluded that the accused was not prejudiced.
Appellant makes no contention that any of the jurors in this case were at any time not under the charge of an officer, or that they were not separated from the public. As we understand his contention, it is that two of the deputy sheriffs who had charge of the jury during the trial were also leading witnesses for the State, and that this ipso facto prejudiced the accused and violated R.S. 15:394 which requires that "the jurors shall be kept together under the charge of an officer in such a way as to be secluded from all outside communication"; in other words, that contact with these deputies who were also witnesses prevented the jury from being "secluded from all outside communication" within the meaning of the statute.
The rule in this state is that an officer who testifies for the prosecution is not, because of this fact alone, disqualified to have charge of the jury, and that in such cases the burden is upon the defendant to show improper conduct, efforts to influence the jury, or any other fact which would prejudice his right to a fair trial. In State v. Oteri, 128 La. 939, 55 So. 582, a capital case decided in 1911, the jury was permitted to attend a theatrical performance and was left in the charge of a deputy who testified
"It has been held in a number of cases that:
"`The fact that an officer is sworn and testified as a witness does not disqualify him from acting as bailiff in charge of the jury during their deliberations.' 12 Cyc. 670.
"As a matter of law, [the officer] was not disqualified to act as bailiff because he happened to be a witness for the prosecution. * * *
"The evidence shows that the jury did not separate for a moment and had no communication with any one outside of their body. Therefore the accused was not prejudiced by the incident under discussion. We, however, must express our disapproval of the permission given the jury to attend the show, thereby subjecting them to the danger of outside influence. We may add that our ruling would have been different if any prejudice whatever had been shown by the evidence." See also State v. McAllister, La., 150 So.2d 557.
Wharton states the rule thus:
"The fact that the sheriff or his deputy was a witness in the case does not disqualify such person from acting as bailiff in charge of the jury during its deliberation. * * *" 5 Wharton's Criminal Law and Procedure (Anderson's ed. 1957), sec. 2109, footnote 2, p. 290. To the same effect, see also 53 Am.Jur., Trial, sec. 858, p. 625; 23A C.J.S. Criminal Law § 1352, p. 946; Ann.Cas.1912C, p. 882; Ann.Cas. 1917B, p. 254.
Cases from other jurisdictions have also recognized the same rule: Galan v. State, 68 Tex.Cr.R. 200, 150 S.W. 1171 (1912); Holmes v. State, 70 Tex.Cr.R. 214, 156 S. W. 1172 (1913); Newby v. State, 17 Okl. Cr. 291, 188 P. 124 (1920); Underwood v. State, 118 Tex.Cr.R. 348, 39 S.W.2d 45 (1931); Hendrix v. State, 200 Ark. 973, 141 S.W.2d 852 (1940); State v. Hart, 226 N.C. 200, 37 S.E.2d 487 (1946); Odell v. Hudspeth, 189 F.2d 300 (C.C.A. 10th; cert. den. 342 U.S. 873, 72 S.Ct. 116, 96 L.Ed. 656).
The last cited case, decided in 1951, was one from a state district court in Kansas where the defendant had been convicted of first degree murder and sentenced to life imprisonment. No appeal was taken, and the judgment and sentence became final. Thereafter by habeas corpus the defendant applied to the federal district court contending that his conviction had been obtained in violation of the due process clause of the Fourteenth Amendment. Having no success in that court he appealed to the 10th Circuit Court of Appeals. That court said of a contention relevant here:
"* * * The contention that the sheriff, a witness for the prosecution, acting as bailiff and custodian of the jury during the trial would void the judgment, is also without merit. There is no evidence that the sheriff did anything irregular in performing this function. The evidence was to the contrary. * * *"
As we have pointed out, under the jurisprudence of this court unless there is a showing of prejudice, a conviction will not be set aside simply because officers who are witnesses in the case have the jury under their charge. This court is inclined to look upon the practice with disapproval, however, because in such cases there may be prejudice of a kind exceedingly difficult to establish. The practice should be especially condemned where, for instance, the testimony
For the reasons assigned the conviction and sentence are affirmed.