Boatwright v. State

83 So. 311, 120 Miss. 883

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20878
• Status: Published

Opinions

SteveNS, J.,

delivered the opinion of the court

Appellant was indicted, tried, and convicted for the murder of W. B. Culpepper, and sentenced by the circuit court of Lauderdale county to be hanged. From this judgment imposing the death penalty appellant appeals, and assigns a number of alleged errors relied upon for reversal. The proof for the state shows that Beeman Boatwright, at the time of the tragedy, September 5, 1918, was a soldier in the United States Army, and a deserter, having left Camp Funston without leave, and being in hiding in the mountains of Lauder-dale county, some two or three miles south of the city of Meridian. Mr. Culpepper,' the deceased, was a lawful constable of beat No. 1, Lauderdale county. Tfle. constable was on a mission to serve certain civil process when he unexpectedly met appellant, asked appellant his name, and appellant responded that his name was “Willie Jones,” whereupon the constable stated: “No it is not;-you are Beeman Boatwright, a deserter from the Army, and I will have to arrest you.” The officer thereupon started to get down from his horse, when appellant quickly pulled his pistol and shot the officer in the stomach, inflicting a mortal wound. On being shot, the officer caught appellant in the belt and began striking him over the head with his pistol, but appellant pulled away, breaking the belt, and. the officer thereupon opened fired and emptied his pistol, and in doing -so inflicted serious wounds on appellant. The proof for the state is largely made by the dying declaration of Mr. Culpepper. There is no controversy about the fact that deceased was a lawful constable;, in the active discharge of his duties within his jurisdiction, and that appellant was a deserter from the United States Army at a time of active service-, and that he was armed with a pistol. Proof for the state further tends to show that appellant had stated that he would not be arrested, and threatened to kill any officer who should undertake to arrest him. The proof for the defendant tended to show self-defense. The questions argued at the bar are all questions of law, and without a further or more elaborate statement of the facts, or of the various' motions made by the accused during the progress of the trial, we proceed to, a statement of our views upon the only legal questions which merit- discussion.

. We may state in the outset that there is no merit in any of the assignments that the court erred in refusing to continue the caus'e, to change the venue,- or to quash the special venire. There was, furthermore, no error in admitting testimony that- appellant several weeks before the difficulty uttered- threats' against any officer who should undertake to arrest him. Harris v. State, 72 Miss. 99, 16 So. 360.

The first,, and about the only, point that has troubled the court is the contention that the defendant-was not served with a copy of the indictment and of the special venire at least one entire day before trial, as provided by section 1481, Code of 1906 (section 1239, Hemingway’s Code). Copy of the venire and of the indictment was. legally served on appellant on Saturday afternoon at 4 o’clock, and the venire was returnable and the ease called for trial the following Monday morning at 9 o’clock. It is the contention of appellant that the one entire day mentioned in the statute means a judicial or week day, and that the legislature in enacting the statute under review did not contemplate that Sunday should be considered in giving or estimating the one entire day. Appellant relies upon Nixon v. State, 2 Smedes & M. (Miss.) 497, 41 Am. Dec. 601. The state contends and the learned circuit judge ruled that section 1606, Code of 1906 (section 1373, Hemingway’s Code) fully answers appellant’s argument and rulés the point under discussion. This section of the Code reads as follows:

“When process shall be required to be served or notice given any number of days, the day of serving the process or of giving the notice shall be excluded and the day of appearance included; and in all other cases when any number of days shall be prescribed, one - day shall be excluded and the other included. When the last day falls on Sunday, it shall be excluded ; but in other cases Sunday shall be reckoned in the computation of time.”

This statute applies in all cases where process is required to be served or any lawful notice given, and, its language being plain, must be applied to the ease at bar. It furnishes a uniform statutory rule for the computation of time when any number of days is prescribed. There is a separate statute which furnishes the rule for computing a number of weeks, but the statute under consideration expressly provides that “the day of serving the process or of giving the notice shall he excluded and the day of appearance included,” .and “when the last day falls on Sunday, it-shall be excluded; but in other cases Sunday shall be reckoned in the computation of time.” So far, therefore, as the service of legal process or legal notice in concerned Sunday must be reckoned in the computation of time, with the one and only exception that “when the last day falls on Sunday it shall be excluded.” This statute was not in existence at the time our court had up for consideration and delivered the opinion in Nixon v. State, supra. The court in the Nixon Case undertook to apply the proper common-law method of computing time, and in doing so employed language apparently in support of appellant’s contention. But the sole point before the court in the Nixon Case was whether a part of two days could be joined together or counted in a way to make forty-eight hours, or the two whole days then provided by statute for the service of the copy. The court ruled that a part of one day could not be coupled with a part of another day, and thereby make an entire day, simply because thereby the defendant had twenty-four continuous hours. The. court was not confronted with the question as to whether Sundays or legal holidays would be counted, but, conceding that the obversations of the court are not dicta, the Nixon Case has no application now because óf the plain meaning of section 1606 of our Code. There is no way for the court to hold that this statute has no application. There is no serious contention that it can be ignored. It must be considered in the present case, and therefore properly construed and applied. There is forcé in ‘the suggestion that Sunday in this ease was the one and only entire day given the accused, and therefore the last day; but to so hold would ignore the other plain provisions of the statute that the day of serving .the process shall he excluded and the day of appearance included. To reconcile therefore and give meaning to every word in the statute, Sunday in this ease was an intervening day, and as such must be reckoned in our computation. It is no answer to say that Sunday is dies non, or that it is not a workday, or a day upon which judicial proceedings are held. The wisdom of the statutory rule is for the legislature. The right which the accused has to the one-day service of the venire and indictment is not a constitutional, but a statutory, right, and the legislature which confers the right may, of course prescribe the statutory rule -for reckoning the time. ' ,

The supreme court of Louisiana in State v. Baudoin, 115 La. 837, 40 So. 239, held that the two days given the accused by the Louisiana statute (section 992, Revised Statutes) need not be judicial days. In the case of Payton v. State (Tex.), 34 S. W. 615, it was ruled that Sunday as an intervening day should be counted, the Court of Criminal Appeals, by HbNdersoN, J.. observing:

“ Appellant contends that he was placed upon trial before two full days had elapsed after he was served with a copy of the indictment. The court’s explanation shows that the indictment was served on him on Saturday, and he was not brought to trial until Tuesday. The contention of the appellant that Sunday should not be counted is groundless.

Our conclusion, then, on this point is that the statute governs; that Sunday in this case is an intervening-day, and must be ‘ reckoned; and accordingly that appellant’s assignment on this point must be overruled. Our conclusion on this point' has been reached without consideration of the state’s contention that request or demand for a copy of the venire was not seasonably made, and without considering the further contention that the motion for a continuance of the case for the term should not be regarded as an application to postpone -the trial to- a later day of the term.

The only other legal question of any merit arises from the refusal of the court to grant the defendant certain instructions based upon the idea that Mr. Cul-pepper, although a lawful constable, had no right to arrest appellant, a deserter. It is said in 5 Corpus Juris. 410: •

'“Formerly a civil peace officer had no right to arrest without a .warrant or military order a deserter from the United States Army; but this rule has been changed by act of Congress expressly authorizing any civil officer of any state to arrest deserters without a warrant. ”

The act referred to is that of June 18, 1898, 30 U. S. St. L. 484, chapter 469, section 6 (U. S. Comp. St. section 2297). Based on this statute, the supreme court of Missouri in State v. Pritchett, 219 Mo. 696, 119 S. W. 386, upholds the right of a. constable of .Missouri to arrest a deserter without warrant.

The testimony in the present case shows that Mr. Culpepper knew Beeman Boatwright; that appellant also knew the. officer; and that the officer, at the time he undertook to arrest appellant, did not merely have a suspicion that appellant was a deserter, but was'confident of the fact, and there is no dispute in the record that appellant had in fact left his post of duty at a time when our government was at war. The testimony of the state further tends to prove that appellant resisted arrest, and in so doing' exhibited and used a, deadly weapon. We are of the opinion that is was not only the right, but the duty of the constable, under such state of facts,' to place appellant under arrest, and his action in doing so needs no apology. The officer in this caSe was backed and protected by tbe law of tbe land, and surely tbe law cannot be defied. Regardless of tbe right of tbe officer to arrest in tbis case with or without a warrant, tbe dying declaration of tbe deceased is to tbe effect that appellant fired tbe fatal shot while the officer was in tbe act of dismounting from bis horse, . and before tbe officer bad employed any force whatever in making tbe arrest.

Tbis case has bad our most careful consideration, and on all points argued tbe judgment of tbe circuit court must be affirmed;* and Friday, tbe 6th day of February, 1920, is hereby fixed as tbe day of execution.

‘ Affirmed.

Smith, C. J., and Sykes, J., dissent.

Smith, C. J.

Tbe provision of' section 1481, Code of 1906 (section 1239, Hemingway(s Code), here in question is as follows:

“Any person indicted for a capital crime shall, if demanded by him, by motion in writing before the completion of tbe drawing of tbe special venire have a copy of tbe indictment and a list of the special venire summoned for bis trial, delivered to him dr bis counsel at least one entire day before said trial.”

Tbe day therein contemplated is a “clear” day of twenty-four hours (Carter v. Henry, 87 Miss. 411, 39 So. 690, 6 Ann. Cas. 715), begins at 12 o’clock midnight, ends at 12 o’clock on tbe night following (Robertson v. State, 43 Ala. 325; 17 C. J. 1131), and is a day other than Sunday (Robertson v. State, supra; 22 Am & Eng. Ency. of Law [2 Ed.], 388).

Sunday in law is dies non, and in tbe case at bar counsel for tbe appellant was not only not required by law to work on Sunday in order to prepare bis client’s case for trial, but, on tbe contrary, bad be violated tbe Sabbetb by so doing, be would have come within tbe condemnation of section 1366, Code of 1906 (section 1102, Hemingway’s Code); Moreover, for obvious reasons, the facilities for inquiring into the qualifications of prospective jurors are more limited on the Sabbeth than on a secular day*

The provision of section 1606, Code of .1906 (section 1373, Hemingway’s Code), that “when the last day falls on Sunday, it. shall be excluded; but in other cases Sunday shall be reckoned in the computation of time ’ ’— probably has no application here, for it seems to deal, with the computation of time in cases involving more than one day; but if it does apply, then it is manifest that Sunday cannot be'counted against this .appellant, for the last day given him in which to examine the indictment and jury list was Sunday. Monday cannot be counted for the reason, among others, that the appellant was not only not given that day in which to examine the indictment and jury list, but, on the contrary, was prevented on that day from so doing by being put on his trial.

• If the statute required the delivery of a copy of the indictment and of-the jury list to a person charged with a capital crime, in order to notify him of the day on which lie is to be tried, and to require his presence there, then it may be that the day on which he should appear for trial should be counted; but such is not the purpose of the statute, for the requirement of the delivery of the copy of the indictment and of the jury list ■ to the prisoner is that he or his counsel may have at least one entire day in which to prepare his answer to the indictment, and to inquire into the qualifications, bias, prejudice, interest, etc., of the persons from whom-the jury by which he will be tried are to be "drawn. The' right is a very valuable one, is indispensable to the orderly and humane administration of the criminal law, and should not be frittered away 'by judicial decision.

It was not necessary for the court below to have continued the case in order to have given the appellant his full right under the statute. All that was necessary to have been done was to have passed the ease'for one day.

For the foregoing reasons my Brother Sykes and I are of the opinion that the judgment of the court below should be reversed and the cause remanded.