Magness v. State

60 So. 8, 103 Miss. 30

• Court: Mississippi Supreme Court
• Decided: October 15, 1912
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Grenada county sentencing appellant to be hanged for the murder of one Geo. W. Gillon. When the homicide was committed, the circuit court was in the first week of its term. Appellant was promptly indicted for murder and some days after his indictment he was arrested by the sheriff and taken to the capital, and there incarcerated in the jail of Hinds county. According to the evidence, this course was taken by him because of his apprehension of mob violence to appellant.

After the indictment, and when the sheriff, with appellant in custody, was en route from Jackson to Grenada, he received information that a mob was forming in Grenada county for the purpose of intercepting him and his prisoner, and for the purpose of saving the county from the unneeessay expenditure of time and money in the trial of appellant. With the advice of the governor, the sheriff secured a corps of special deputies to assist in the protection of his charge. When the county was reached, the sheriff, out of an abundance of caution, superinduced by the omnious messages he had received, carried the prisoner by a circuitous and little used route to the county jail. From this time to the trial the sheriff deemed it prudent to employ a guard for the jail, and himself remained on guard, reinforced by others, after nightfall.

On Monday of the second and last week of the term appellant was arraigned, and pleaded not guilty. On the following day the state announced ready for trial, but the defendant, through his counsel, demurred to being required to announce, saying that they had not had time to secure the presence of their witnesses, and were not ready to make an announcement. Whereupon the district attorney requested the court to order the drawing of a special venire and to fix a day for the trial of the case, and this was done, the court fixing the following Saturday for the return of the venire. The defendant objected to this order of the court. On Thursday the court, having proceeded to the trial of another ease, State v. Caffey, wherein a different person was charged with the crime of murder, his trial was temporarily suspended while appellant was again brought into court to announce his readiness or unreadiness for trial. Appellant announced that his witnesses had not appeared, and the court then passed the matter by, resuming the trial of the other case. On Saturday (the last day of the term) the day fixed for the return of the special venire the case of State v. Caffey was again temporarily set aside to take up this case. On the day before (Friday) appellant had' asked that his case be passed because of the absence of two witnesses, but on Saturday these two witnesses were present. In the meantime, appellant had process issued for several other witnesses. All of the other witnesses first summoned for the defendant, except his wife, were present on Saturday. Defendant was required to state what he expected to prove by the new witnesses, which he declined to do, and the court, at the request of the state, was proceeding to impanel the jury, when appellant interposed a motion to change the venue of the trial of his case. The court, over the objection of the state, decided to hear the witnesses in support of this motion. A number of witnesses were introduced by defendant in support of the motion. None were introduced by the state in rebuttal.

•The application for a change of venue was in the form and to the effect prescribed by the statute, and thus presented a prima facie showing for a change of venue, which could be contested by the state, or the court could sua sponte have examined witnesses on the matter, but nothing of this sort transpired. After the hearing of the evidence, the court overruled the motion, and defendant asked for time to prepare a motion for a continuance. Time was granted, and it appeared to the court that unnecessary time was being consumed in the preparation of the motion. The defendant and his counsel were repeatedly warned, without avail, to present their motion. Finally, a peremptory order was made to bring defendant into court, which order was effectual, and defendant brought in his motion, which he claimed was incomplete for lack of time allowed by the court for its preparation. The motion as prepared was overruled. It was then about eleven o’clock in the evening of the last day of the term. The trial of the Caffey case was suspended, and the court ordered the impaneling of the jury for the trial of the present case, over the protest of defendant. The attempt was made to select a jury until twelve o’clock, at which time the term lapsed, and, the jury being incomplete, court was adjourned until- Monday morning of the succeeding week.

' It will be observed this case was taken up and the trial thereof begun by discontinuing, or temporarily suspending, the trial of another case, and both were carried over and tried after the expiration of the term fixed by statute. On Monday further effort was made to impanel the jury from the special venire, without success, so the court ordered an additional venire summoned, and, while waiting, it returned to the trial of the Caffey case. So it was the unusual spectacle of the court trying two capital felonies at the same time was witnessed perhaps for the first time in. this state, and that, too, after the expiration of the regular term of court. It is stated (which statement we have not verified), and not contradicted, that over one hundred of the special jurors were disqualifiedbecause of their prejudgment of the ease. It is certain that a large number were so disqualified. We have endeavored to make a succinct statement of the procedure adopted by the court in the trial of this case, for the reason, it is believed that it is unique in the history of trials in this state.

The main reliance for a reversal rests upon the theory that appellant was denied a fair and impartial jury. The right of trial by an impartial jury is the dearest bought right of all peoples whose system of laws is based upon the common law of England, and this right is reserved as a part of our inheritance by the bill of rights of our Constitution. It is manifested by this record that appellant was tried in a county where the people were hostile to him, and where public sentiment had crystallized into a fixed belief of his guilt, and that, too, under circumstances which must have impressed all witnesses with the visible purpose of the trial court .to try him then and there, whatever might be the consequences to another case, duly and regularly on trial, and of the same dignity and character under the law. Under our statute, the trial of one or the other of those cases was discontinued when the regular term expired. Was it this case, or was it the Caffey case? If this ease was within the statute, what about the Caffey case? Caffey was acquitted by a jury, it is said; but is this true? He was acquitted by twelve men who certainly composed a jury of the legal term, but was it a jury at all when the verdict was rendered? These are serious questions, and are pertinent here, and will be discussed later. If this was a case where the guilt of defendant was certain, and where no other verdict could have followed the evidence, no matter where and by whom he was tried, there would be no sound reason for reversing the case merely because the atmosphere in which he was tried was saturated with a fixed belief of his guilt. But this is not a case of that character. The evidence in favor of self defense was explicit, and, if the jury entertained a reasonable doubt of its truthfulness, they may have returned a different verdict. It is unimportant what this or the trial court may think about the guilt of defendant, for that question is solely for the jury to decide, and it is therefore important that the jury should be entirely free to weigh the evidence with impartiality and with no preconceived ideas as to its truth or falsity, and uninfluenced by pressure from the outside.

The requirement of the law is not satisfied by the mere impaneling of twelve men against whom no legal complaint can be made. The defendant is entitled to be tried in a county where a fair proportion of the people qualified for jury service may be used as a venire from which a jury may be secured to try his case fairly and impartially, .and uninfluenced by a preponderant sentiment that he should be flung to the lions. It is our opinion that the record discloses this sentiment present when this case was tried, and that the defendant had no chance to secure such a jury as the law contemplates should arbitrate between the state and the defendant on trial. The learned trial judge, surrounded by the many perplexities of a trying situation, and impressed with a laudable desire to contribute his power and influence to the enforcement of the law, strained the processes of the law, and the defendant’s constitutional rights were thereby infringed.

Another thing occurred, which we think should not be passed without comment. Under the circumstances surrounding this trial, if we correctly interpret them, the remarks of one of the attorneys for the state were extremely prejudicial to the defendant on trial. The remarks were: “This is no ordinary defendant. This is no ordinary case, for from the defendant’s own lips on yesterday you were informed that this is not the first time the defendant has stood before a jury in Grenada county charged with dyeing his hands in human blood.” This remark was improper, as other trials of defendant resulting in his acquittal can never be given in evidence against him, and this reference to the other trial could have no effect, except to remind the jury that defendant had been acquitted by one jury — that he then escaped just punishment — and this .jury should see to it that he does not escape a second time. The record leads us to believe that one of the parties present at the homicide, and in company with appellant, committed suicide in the good old Western way, and by the assistance of an outraged committee of the good citizens of the community. This suicide occurred just before the trial. Need anything more be said along this line? We think not.

Returning now to the action of the court in carrying over the trial of two unfinished cases after the expiration of the term, we will consider the effect of such action upon the rights of appellant, and incidentally upon the rights of the defendant in the other case. It will be noted that the court did not discontinue the trial of the Caffey case and order a discharge of the jury, and then take up the trial of the present case. If the court entertained the belief that for any reasons of public policy it was more important to discontinue the trial of the one case and take up the trial of another case, it was within its power to have accomplished this purpose. The court did not do that; on the contrary, it attempted to retain jurisdiction of both eases, and did, in fact, complete the trial of both after the expiration of the term.

Section 1009 of the Code of 1906 does not authorize the carrying over of more than one ease. Of course, the legislature could empower the courts to adjourn from day to day until the entire dockets are completed, but section 1009 does not so provide. We think the course of action adopted by the trial court amounted to about this: It was the purpose to put appellant on trial at all hazards, and to try Caffey also, if it was possible to do so without defeating a trial of Magness. If this was the intention, the Caffey case should have been continued, because everything done after the expiration of the term in one or the other of the cases was mere brutumfulmen. The trial of the Caffey case had “been commenced” and was “in progress” when the term of court expired. To hold otherwise would be to hold that Caffey has not been acquitted by a jury, and therefore may be tried anew for the crime charged against him, for, under our Constitution, nothing less than the verdict of a jury on the merits can work an acquittal of a person charged with crime. Section 22, Constitution. It would be unthinkable to hold that Caffey must be tried again, but a new trial for the state is the logical sequence of a holding that the trial court had jurisdiction to try appellant after the term expired. It thus becomes clear that the learned trial judge, by his rulings, created a complication which might be very serious to a citizen acquitted by a court without jurisdiction to try his case, and, if the contention of the state in the present case is sound law, Caffey is confronted with a retrial upon the charge of murder.

There can be no criticism of any of the things precedent to the trial. It was the duty of the court to try the case at the term of the indictment, if it could be legally done, but this being obviously impossible without pretermitting . a case in the progress of trial — and the court failing to do this — it had no jurisdiction to try the present case, and sentence appellant to be hanged.

If appellant had been acquitted, instead of convicted, he could be tried anew, and all had and done in his case after the term expired was of no more legal validity than would have been a similar trial before a moot court.

Reversed and remanded.