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JOHN WAYNE EDLIN v. STATE OF MISSISSIPPI

MARCH 09, 1988

JOHN WAYNE EDLIN
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., SULLIVAN & ZUCCARO, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

John Wayne Edlin was convicted of the murder of Paula Diane Sims and sentenced to life imprisonment by the Circuit Court of Jones County, Mississippi. Edlin appeals assigning seven alleged errors by the trial court.

I.

 DID THE COURT ERR IN INSTRUCTING THE JURY THROUGH THE BAILIFF THAT THE COURT HAD SPENT TOO MUCH TIME ON THIS TRIAL AND FOR THE JURY TO CONTINUE TO DELIBERATE?

 The jury retired at 3:30 p.m., to commence their deliberations and at 8:25 p.m., was brought into the courtroom where the foreman informed the trial judge that the jury was still divided, and had been so divided for "a little over two hours." All but one juror indicated that additional time might enable them to reach a verdict.

 The judge then charged the jury as follows:

 All right. Under those circumstances, I believe I will let you continue to deliberate then.

 At approximately 8:52 p.m. the jury reported that they had reached a verdict. After being polled, the jury was discharged.

 On October 17, 1985, at a hearing on Edlin's motion

 for new trial Edna Pippen, one of the bailiffs, testified as follows:

 A. Both doors were shut, and I opened the front door, and that's where he knocked. I asked him had they reached a verdict and he said no, and he told me all about them being hung.

 Q. What did he tell you about that?

 A. He just told me, he said, "We are hung."

 Q. All right.

 A. He said, "There are two that says they are not going to change their minds."

 Q. All right.

 A. And then I went to the Judge and told him what he said, and he told me to go back in there and tell them that we had put too much work and time on this case and for them to try again, and that's what I told him.

 Q. And the jury was never called out of the room?

 A. Oh, no. I just talked to Mr. Harrington, and he talked loud enough that the people on the front row there heard it because my daughter was sitting there and she heard it.

 * * * *

 THE COURT:

 Q. Mrs. Pippen, let me ask you something.

 A. Yes, sir, I am sorry.

 Q. Did I understand you to say that the Court told you to tell the jury that we had spent too much time on this trial and for them to continue to deliberate?

 Is that what you said?

 A. I told them that - I understood you to say that we had spent a lot of time - not too much - but a lot of time on this case and for them to try again - go back and deliberate some more - work on it some more.

 Q. All right.

 The record clearly shows that the bailiff told the foreman of the jury that "the judge said we had put too much time and work on this case . . . ." The State's contention that it cannot be said that the court so instructed the jury is incorrect; as this Court said in Allen v. State, 172 Miss. 472, 159 So. 533 (1935):

 It is immaterial whether the judge in the case at bar made the statement as testified to by the bailiff, since it was communicated to the jury as coming from him, and had some effect on them.

 Allen, 172 Miss. at 490, 159 So. at 539.

 The error complained of by Edlin need never have occurred. In Sharplin v. State, 330 So.2d 591 (Miss. 1976), this Court stated:

 If the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: "Please continue your deliberations," or he may give the following instruction set forth in the tentative ...


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