Opinion
No. 38680.
March 23, 1953.
1. Criminal procedure — evidence — homicide.
Where the verdict of guilty of manslaughter is supported by the testimony of two witnesses who were standing on the opposite side of the street from where the homicide occurred and for all practical purposes were eyewitnesses, and also by others who were in the cafe when the controversy started, the verdict will not be set aside as against the great weight of the evidence.
2. Criminal law — courts — jurisdiction of subject matter and of parties — venue — waiver of proof of facts.
While it is true that in a criminal prosecution a defendant may not forego the requirement that the court must have jurisdiction of the subject matter and parties, he may waive proof of it, and therefore may admit in the trial the facts which confer such jurisdiction including the fact that the offense occurred in the county of the prosecution.
3. Trial — admission of facts by an attorney.
Admissions of facts made by an attorney in the progress of a trial are, as a general rule, binding on his client, provided such admissions are distinct and formal and made for the express purpose of dispensing with formal proof of such facts at the trial, especially if acquiesced in by the client through his silence, and the rule is applicable to criminal as well as civil cases.
4. Witnesses — examination respecting previous conviction of crime.
A witness may be examined concerning his conviction of a crime but not about its details.
5. Witnesses — previous conviction of crime — refreshing memory of witness.
When a witness had denied that he had been convicted of any crime in this state and the prosecuting attorney, in order to refresh the memory of the witness, asked him if he had not been convicted of fighting in Gloster, Mississippi, to which the witness replied that he had been and volunteered some of the details but had forgotten about it, there was no error especially when no motion was made for a new trial or to exclude the answer.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, Judge.
John B. Gee and Vance W. Good, for appellant.
In the instant case there was proper allegation in the indictment, but failure of proof of the venue. In an early case, Thompson v. State, 51 Miss. 353, this Court held that failure of proof of venue was fatal and required reversal.
Failure of proof of venue is jurisdictional, and may be raised in this Court for the first time: Cagle v. State, 106 Miss. 376; Quillen v. State, 106 Miss. 831; Norwood v. State, 129 Miss. 813; Griffin v. State, 105 Miss. 457; Evans v. State, 108 So. 725; Norris v. State, 143 Miss. 365; see also Poore v. State, 205 Miss. 528.
The prosecution in this case endeavored to establish jurisdiction by one witness only, Tommy Brooks, in which the witness was asked in what county was the Busy Bee cafe located, — upon his failure to answer he was then asked what county witness lived in. We quote the record: "Q. In what county and state was your Busy Bee cafe located? A. Right there in Waltersville. Q. What county is that? A. What is it: Q. Don't you know the county you live in?"
It will be here noted from the record that the witness did not, in response to any question, state the situs of the homicide, or that the homicide occurred in Warren County, State of Mississippi, nor did any other witness in the record.
The record shows that after the last question propounded to witness one of defendant's counsel state: "We will admit it was in Warren County, State of Mississippi."
The record is not clear whether counsel was admitting the residence of witness to be in Warren County or whether the admission applied to the scene of the homicide. It yet left the proof of venue lacking and not proved.
However, inasmuch as proof of venue is a constitutional right we do not think it may be waived in criminal causes by the defendant. If the defendant is incapable of waiver of a constitutional right, then his counsel is likewise incapable. This Court has held that venue must be proved; that a defendant may not waive a constitutionally composed jury of twelve men; that trial in criminal causes by less than twelve men is void in toto. Hood v. State, 61 Miss. 577.
We think the same rule applies to all rights granted under the constitution. The rights that are granted to a defendant in criminal cases affect not only the accused, but are coupled with a public interest which the accused has no right to waive or jeopardize. 5 Am. Jur., Attorneys at Law; Am. Jur. under subject of Waiver, 11 note 11; Wright v. City of Belzoni, 194 So. 919. See also: State ex rel. Lea v. Brown, 91 A.L.R. 1246; Green v. State, 23 Miss. 509; O'Neal v. State, 105 So. 496; Thompson v. State, 51 Miss. 353.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
Appellant, Charlie Smith, was convicted in the Circuit Court of Warren County for manslaughter. He argues three assignments of error. (Hn 1) It is first contended that appellant should have been given a directed verdict, and that the verdict of the jury is against the great weight of the evidence; that under the rule of Weathersby v. State, 165 Miss. 207, 147 So. 481, (1933), the jury had to accept appellant's version of the killing, which was self-defense, because he was the only eye-witness and his testimony was not substantially contradicted in material particulars either by credible witnesses for the State or by the physical facts. However, we think that the record is sufficient to support the verdict. Two women standing across the street from where the killing occurred were for all practical purposes eye-witnesses. See Massengill v. State, 62 So.2d 330, (Miss. 1953). Their testimony tended to show that the appellant hit Cotton, the deceased, with a board at a time when there was no apparent threat or danger to appellant, and that he did not act in necessary self-defense. Although their testimony was somewhat indefinite as to whether they could see Cotton's hand over the hood of an automobile, their testimony, coupled with that of others who were in the cafe at the time the controversy started, contradicted appellant's version and amply supported the jury's verdict.
Appellant says that the State failed to prove venue, or the place where the crime occurred. However, during the direct examination of Tom Brooks, a witness for the State, his attorneys stipulated and admitted that the cafe where the crime occurred, and by clear infeernce the crime itself, "was in Warren County, State of Mississippi." Appellant argues that neither he nor his attorneys can waive his constitutional right that the State prove the venue and the jurisdiction of the Circuit Court of Warren County. It is true that appellant could not waive the jurisdiction of the trial court over the subject matter and parties, and it was necessary that the offense must have occurred in Warren County in order for that jurisdiction to exist. However, appellant, through his attorneys, had the right to waive formal evidence to prove facts which would show the jurisdiction of that court. In other words, (Hn 2) appellant could not forego the requirement that the court must have jurisdiction of the subject matter and parties, but he could waive proof of it, and that was what appellant's attorneys did in the instant case. The applicable rule is stated in 5 Am. Jur., Attorneys at Law, Section 93: (Hn 3) "Admissions of facts made by an attorney in the progress of the trial are usually held to be binding on his client, provided such admissions are distinct and formal and made for the express purpose of dispensing with formal proof of such facts at the trial, especially if acquiesced in by the client through his silence. This rule applies in criminal prosecutions, whether the admission is made by the defense counsel or the prosecuting attorney, and in the case of an attorney employed by a municipal corporation, as well as to an attorney employed by an individual.' Under the distinction made above, the case of Hunt v. State, 61 Miss. 577 (1884), is not pertinent. There it was held that a defendant could not waive the constitutional requirement of a trial in a criminal case by a jury of twelve men. The record showed that only eleven served on the jury. Twelve men were a constitutional prerequisite to a jury trial as defined in the State Constitution. And so in the present case appellant did not have the power to give up the requirement that the circuit court must have jurisdiction. But he could waive, as he did, formal proof of facts establishing that jurisdiction.
In the cross-examination of appellant, appellant admitted that he had been convicted in Louisiana of assault and battery, and stated that that was his only conviction. The following then occurred: Q. "Have you ever been in Gloster, Mississippi?" A. "Yes, sir." Q. "Were you conivcted of crime down at Gloster, Mississippi?" A. No, sir, not in my life.' Q. "Do you remember talking to Mr. Chaney and me over in the jail?" A. "Yes, sir." Q. "You remember talking to us?" A. "Yes, sir." Q. "What did you tell us about your trouble at Gloster?" (By Mr. Gee: We object to that.) Q. "What did you tell us about Gloster, Mississippi, when you were convicted of fighting at Gloster, Mississippi and put in the calaboose?" A. "Oh, I forgot about that." Q. "Tell the jury about it." A. "That was me and my old lady, and she had be arrested. That was the only time."
Appellant says that this interrogation constituted reversible error, since the district attorney was permitted to inquire into the details of the crime in Gloster. It will be noted that originally appellant denied that he had been convicted of a crime in Gloster, and that then the district attorney undertook to refresh his memory by referring to what appellant had told him. He then specifically asked the appellant whether he had been convicted of fighting in Gloster, to which appellant replied that he had forgotten about that, and appellant then stated that the conviction resulted from a fight between himself and his wife. (Hn 4) Code of 1942, Section 1693, permits a witness to be examined only concerning his conviction of a crime, and not concerning its details. (Hn 5) However, the questions propounded are not error on this record. The questions were designed to refresh appellant's memory and to identify the conviction, not to describe its details. Appellant himself volunteered most of the facts concerning the conviction. And although appellant's attorney objected to one of the questions, he obtained no ruling from the court thereon, and no motion was made for a mistrial or to exclude the answer. Roney v. State, 167 Miss. 532, 142 So. 475 (1932).
Affirmed.
McGehee, C.J., and Kyle, Holmes, and Lotterhos, JJ. concur.