Hammond v. State

74 Miss. 214

• Court: Mississippi Supreme Court
• Decided: October 15, 1896
• Status: Published

Opinion

Whiteield, J.,

delivered the opinion of the court.

On the appeal of the state the question is presented as to the propriety of the action of the court in quashing the'second indictment (No. 986 in the record) on the ground that the wife of the accused testified to material matters before the grand jury. And first we remark that the rule declared in this state that no inquiry can be entertained the object of which is to show that the indictment was found without the examination of any sworn witnesses (Smith & Covin v. State, 61 Miss., 754) would, in principle, exclude the inquiry here propounded. Four of the cases cited in Smith & Cavin v. State, supra, to wit: 24 Ind., 151; United States v. Reed, 2 Blatchford, 435; 2 Hill (S. C.), 288, and State v. Dayton, 3 Zab., 49, are cited by Mr. Bishop (1 Bish. Crim. Pro., sec. 872, p. 517, note 4) to sustain the proposition that ‘£ the doctrine appears to be general that the court cannot inquire into the sufficiency of the proof . . . to invalidate an indictment.” And, in sec. 874, Mr. Bishop says: £ £ The rule of evidence, familiar as to the petit jury, that the testimony of a juror will be received to sustain a verdict, but not to impeach it, applies also to the grand jury. So that the want of legal evidence to justify the finding of a bill . . . cannot be shown in this way, and no other is ordinarily practicable. ’ ’ Says Green, C. J., in State v. Dayton, supra: ££ If the position be sound that every indictment not found upon the production of legal and competent evidence before the grand jury is essentially vicious, it follows that, in all cases where the witnesses produced before the grand jury are, from any cause, legally disqualified or incompetent to testify, or when any essential link in the chain of testimony is sustained by testimony not in itself legal, the indictment cannot be sustained although there be ample competent testimony, not produced before the grand jury, to sustain the charges in the indictment.” But no objection was made by the state to the testimony of the two grand jurors who were examined to overthrow the indictment. Pretermitting, however, the question as to whether the inquiry could be made, on motion to quash the indictment, the fair result of the testimony of the two witnesses is, that other competent testimony was heard by the grand jury to substantiate all that the wife testified to, and that the indictment would have been found regardless of her testimony. In this view the court erred in quashing the said indictment. 1 Bish. Crim. Pro., sec. 872.

Turning now to the appeal by the defendant, we have to repeat what we have often said, that £ £ conscientiously ” is a word of quality, and not of quantity, and ought not to be used in charges as to reasonable doubt. But in the charge complained of here, it was mere surplusage; for the jury are not only told that they must “conscientiously” believe, but that they must ‘ ‘ conscientiously believe beyond a reasonable doubt, ’ ’ etc. The expression that ‘ ‘he made wounds on the child, from which he died, ’ ’ must be read in the light of the testimony, and, so read, could not possibly have been understood by the jury as warranting conviction, though the wounds were unintentionally made.

It is urged that the court erred in refusing this charge: ‘ ‘ Good character of a defendant is of itself a sufficient fact from which a reasonable doubt of guilt may arise. ’ ’ The court had already charged the jury that the good character of a defendant was a fact they should consider, in connection with all the evidence, in determining the guilt or innocence of the defendant. The charge was properly refused. This court said in Coleman's case, 59 Miss., 490: “Evidence of the good character of the accused should go to the jury as any other fact, and its influence in the determination of the case should be left to the jury, without any intimation from the court as to its value. The court should not tell the j ury that satisfactory evidence of the good character of the accused is, or is not, sufficient to raise a reasonable doubt of his guilt.”

In Brown v. State, 5 So. Rep., 626, a physician was called to prove that death was caused by the blows inflicted in the whipping of the child, but declined to so testify. Nothing of that sort occurred in this case.

The law was most abundantly and liberally charged for the defendant. We find no error, and the judgment is

Affirmed.