McPherson v. State

86 So. 854, 124 Miss. 361

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction of murder. The court below committed no reversible error in making any of the rulings complained, of, only one of which will be here specifically set forth. The court below during the progress of the trial, and at the request of the district attorney, proceeded to the place at which the homicide was committed, and while there certain testimony was taken at the instance of the state other than such as is permitted by section 2720, Code of 1900 (Hemingway’s Code, section 2213), under which the view of the place at which the homicide occurred was had. On the return of the court to the courtroom, and after the state had finished its introduction of evidence, the appellant called the attention of the court to the fact that no order had been entered providing for a view of the place at which the homicide occurred, and moved the court: First, to exclude all of the evidence that had been introduced by the state; and, second, to discharge the jury and enter a mistrial, for the reason that the court proceeded to the place where the homicide occurred before the order providing therefor had been entered on the minutes. Both of these motions were overruled, and the order for the view was afterwards entered on the minutes of the court.

The statute provides:

That “the court may, at its discretion, enter an order providing for” a view or inspection of the place at which the offense is charged to have been committed, and that “after such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by him and by the representative of each side at the time and place of such Anew or inspection, in reference to any material fact brought out by such'view or inspection.”

The contention of the appellant is that the order providing for the view of the place where the homicide, occurred should have been entered on the minutes of the court before the view was had, and that because the order was not so entered all of the proceedings had at the place where the homicide was committed were coram non jvclice.

It is no part of the duty of the judge of a circuit court to enter orders and judgments rendered by him on the minutes of his court. The entering of judgments, orders and decrees on the minutés of the court is a mere ministerial act which, is committed by section 1007, Code of 1906 (section ‘727, Hemingway’s Code), to the clerk of the court, and the clerk complies with his duty relative thereto by entering all orders and judgments made by the judge “in the minute book of the court, against the next sitting of the court, if practicable;” it being utterly impossible for the minutes of the court to be kept so as to permit the entering of each order, judgment, or decree immediately after its rendition.

Ordinarily to enter an order means to spread it at large on the minutes of the court, but it is hardly possible that the legislature intended to use the words “enter” and “entered” in the statute here under consideration in that sense when so to do would, without any reason therefor, impose upon the judge a mere ministerial duty which could be more properly, and in all other cases must be, discharged by the clerk. These words evidently are used in the statute in the sense of “make” and “made,” and the court below therefore was authorized to repair to the place of the homicide after the judge had discharged the judicial function of making the order therefor, leaving the mere mechanical or ministerial act of spreading the order on the minutes to be afterwards performed by the clerk in accordance with section 1007, Code of 1906 (Hemingway’s Code, section 727). No error was committed in overruling these motions.

While the court was at the place at which the homicide occurred several withnesses testified to facts brought out by the view. One of these witnesses also testified,, in response to questions propounded to him by the district attorney, that he went to the place of the homicide immediately after it occurred, and that the appellant there told him that she killed the deceased.

The deceased was shot from a window of the house in which the appellant lived, but the evidence on the part of the state, other than that of the witness here in question, as to the identity of the person who fired the shot, was circumstantial. The appellant, when she came to give testimony, admitted that she killed the deceased, hut claimed that she killed him in self-defense. One of the appellant’s contentions is that this admission by the appellant that she killed the deceased should not have been admitted at the place of the homicide for the reason that it is not of the character of evidence permitted by the statute to he there taken. This contention cannot he sustained for two reasons: First, the record does not disclose that any objection was made to this evidence in the court below; and, second, if error ivas committed by admitting the evidence, it was cured when the appellant afterwards admitted that she killed the deceased.

Affirmed.