Opinion
No. 34083.
April 8, 1940. Suggestion of Error Overruled May 20, 1940.
1. COURTS.
That proof of publication of order for special term was not properly made or was not made at all would not affect validity of conviction at special term (Code 1930, secs. 731, 732).
2. COURTS.
Where order for special term limited its duration to two weeks, mistrial was declared on last day of second week, and court then extended term another week during which conviction was rendered, such conviction was legal (Code 1930, secs. 731, 732).
3. COURTS.
The statute authorizing judge to extend term of court by order entered on minutes for such time as he may determine applies to special as well as regular terms (Code 1930, secs. 731, 732).
4. CRIMINAL LAW.
The reviewing court would not determine whether order for extension of special term was based on evidence, since such question was immaterial, to validity of order (Code 1930, secs. 731, 732).
5. CRIMINAL LAW.
The extension vel non of special term is within discretion of trial judge, and reviewing court will not inquire into whether or not such discretion was abused (Code 1930, secs. 731, 732).
6. HOMICIDE.
Where the state's evidence showed murder and accused's evidence showed manslaughter, and accused was convicted of manslaughter, erroneous admission of evidence reinforcing state's claim of murder would be no ground for reversal.
7. HOMICIDE.
In murder prosecution, accused's evidence justified manslaughter instruction.
8. HOMICIDE.
An accused could not complain of instruction which permitted manslaughter conviction even if the case made by the evidence was one of murder or self-defense.
APPEAL from the circuit court of Alcorn county, HON. CLAUDE F. CLAYTON, Judge.
G.C. Moreland, of Corinth, and Hugh N. Clayton, of New Albany, for appellant.
The court erred in extending the special term into the third week because the special term was a nullity and because there were no facts and no showing of facts to justify such extension.
It is the position of the appellant that the special October, 1939, term of the Circuit Court of Alcorn County, Mississippi was not called into being in the manner and form as required by Section 731 of the 1930 Code of Mississippi; that the said special term was a legal nullity and that, therefore, the extension of the said special term into the third week was a legal nullity, the court had no jurisdiction of this cause, thereby making the conviction of the appellant void and the cause should be reversed and remanded.
That the law is strictly construed with reference to special terms of court, the extension of court terms, and the adjourning of court where the judge be absent, as provided for by Sections 731, 732, and 733 of the 1930 Code, is established without any doubt by the case of Williams et al v. Simon, 135 Miss. 562, 99 So. 433.
Perry v. State, 154 Miss. 459, 122 So. 744.
There were no facts and no showing of facts to justify the order of the circuit judge in extending the term into the third week. The appellant was put to trial on October 12th, 1939, and on October 13th, 1939, because the jury could not agree on a verdict it was discharged and a mistrial entered. Then, upon the discharge of the jury, the district attorney arose and made a simple motion in the following language: "The state would like to ask that the term be extended for a week and that this cause be set for call Monday morning."
Code Section 732 indicates that there must be some reason for the judge to extend the term and there must be in existence facts on which his sound judgment could be based.
The court erred in overruling the objection of the plaintiff to the extended term.
The court erred in admitting testimony as to where Sam Jennings the deceased, worked: the route that he followed from his work home and all other facts with reference to his employment, the route he followed to and from his employment and what articles he carried on such trips.
Woods v. State, 90 Miss. 245, 43 So. 433; Richardson v. State, 123 Miss. 232, 85 So. 186; McCormick v. State, 159 Miss. 610, 132 So. 757; 30 C.J. 193, sec. 423.
The court erred in admitting testimony about appellant allegedly attempting to swap his pistol to Willard Sweat.
30 C.J. 203, sec. 433.
The court erred in admitting testimony that the appellant did not deny statements made by Jim Clark, Roy Bass, and Clifford Jones in county attorney's office as to how the killing took place.
Riley v. State, 107 Miss. 600, 65 So. 882; Anderson v. State, 171 Miss. 41, 165 So. 645; State v. Diskin, 34 La. Ann. 919, 44 Am. Dec. 448; State v. Goldfeder, 242 S.W. 403; Ellis v. State, 8 Okla. 522, 128 P. 1095, 42 L.R.A. (N.S.) 811; People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689; Yep v. U.S., 83 F.2d 41.
The court erred in admitting testimony that Jim Clark, Roy Bass, and Clifford Jones made similar statements as to how the killing occurred, in the office of the county attorney in the presence of the appellant, and that he did not deny them.
Sherrod v. State, 93 Miss. 774, 47 So. 554; Sec. 1495 of 1906 Code (Sec. 1276 of 1930 Code); Thomas v. State, 117 Miss. 532, 78 So. 147; Stanley v. State, 97 Miss. 160, 53 So. 497; Blackwell v. State, 166 Miss. 524, 146 So. 628.
The court erred in overruling appellant's objection to the argument of the district attorney before the jury.
The court erred in granting to the state a manslaughter instruction. In presenting this question to the court as an alleged error in the lower court, I am fully aware of the decision of this court in Calicoat v. State, 131 Miss. 169, 95 So. 318, which has been followed consistently by many subsequent decisions, the latest being Bustin v. State, 185 So. 259.
I realize too that the question as to whether a defendant accused of murder, convicted of manslaughter, and given a new trial could be convicted of murder on a second trial has been settled in the case of Taylor v. State, 148 Miss. 713, 114 So. 823.
I trust I won't be considered presumptuous in view of this announced and often reaffirmed statement of this rule of law in suggesting that it should not apply to the instant case.
As far as I can learn, this is the first case before this court where there was a mistrial on the first trial when there was no manslaughter instruction given the state and there was a verdict of manslaughter when that instruction was given on the second trial. Were this a case when some of the elements of manslaughter were present, there might be some reason for saying such an instruction is appropriate. But, in this case, the appellant was either a murderer or an innocent man. By the testimony of Jim Clark he was a murderer; by the testimony of the appellant and Emmitt Gillard, he was an innocent man. Natural justice and common right entitle him to have a jury of his peers pass judgment on that issue and not to have a compromise issue as a basis for settlement given the jury.
Since the Calicoat case, supra, there have been repeated attempts made by the Bar of this state to have the rule announced therein modified or set aside. I do not believe that such positions steadily maintained by counsel for defendants is due to lack of knowledge as to the decisions of this state, but because it is their conviction that the reasoning of the Calicoat case is based upon a false premise.
Therefore, I most respectfully submit that such rule should be modified in a case such as this where the fact is established by the record of the first trial that the manslaughter instruction given in the second trial afforded a compromise verdict, which our courts do not favor. W.D. Conn, Jr., Assistant Attorney-General, for appellee.
This case was tried at a special term of the Circuit Court of Alcorn County, which had been called by the judge thereof, same being called for two weeks. During the second week this appellant was tried, and the result was a mistrial. Thereupon the court extended the special term for a period of one week and set this case for trial on the first day of the extended term. Appellant argues here that the special term was a nullity because there was no proper proof of publication of the notice calling the special term of court, and the special term being a nullity, the extension was likewise such. In the early case of Friar v. State, 3 How. 422, the court held that whether notice were given or not, it did not affect the jurisdiction of the court. Likewise, the statute expressly provides (Section 731, Miss. Code of 1930) that "A failure or irregularity in giving notice shall not affect the validity of any judgment or proceeding given or had at a special term."
In the absence of any affirmative showing that the court may have abused the discretion vested in him by law, this court will indulge in the presumption of official regularity and propriety and will not hold the trial court to have erred in extending the term. It may be noted that the order which the trial court entered in this case is substantially the same as was the order entered by the court and set out in the decision in Watson v. State, 166 Miss. 194, 146 So. 122.
The sentence of the court, 15 years in the state penitentiary, was within the limit allowed by law, and this court can have no concern with it, even though the jury recommended mercy.
McCaffery v. State (Miss.), 187 So. 740.
Argued orally by Hugh N. Clayton, for appellant, and by W.D. Conn, Jr., for the appellee.
The appellant was tried for murder and convicted of manslaughter at a special term of the circuit court called by the circuit judge under provisions of Section 731, Code of 1930. The order of the judge for the special term limited its duration to two weeks. The appellant was tried near the end of the second week, resulting in a mistrial on the last day thereof. The court then, on the suggestion of the district attorney, entered an order extending the term one week, reciting therein "that the business of this court and the public interest makes it advantageous and proper for this special October Term to be extended for one week." The appellant, over his protest, was placed on trial during this extension of the term and convicted of manslaughter.
The appellant says that this special term and the extension thereof were illegal because (1) proof of the publication of the order for the special term was not properly made; and (2) the order for the extension of the term was made without the court having before it any evidence on which to determine the necessity for the extension.
Whether the proof of the publication of the order for the special term was properly made, or was made at all, is immaterial for the reason that Section 731 expressly provides that "a failure or irregularity in giving notice shall not affect the validity of any judgment or proceeding given or had at a special term."
The trial of the appellant after the expiration of the two weeks' limitation on the duration of the term set forth in the order of the judge recalling it was legal. Section 731 of the Code does not limit the duration of special terms of court called thereunder. It is not necessary for us to now decide whether a limitation on its duration contained in the order calling it into existence is of any efficacy (cf. Dees v. State, 78 Miss. 250, 28 So. 849), for if it is, Section 732 of the Code, which empowers the judge to extend the term of his court "by an order entered on the minutes of the court for such time as such judge or chancellor may determine" applies to special as well as regular terms of court. That the record does not disclose that the order of extension was based on evidence or rather, as the appellant says, discloses that it was not based on evidence, is of no consequence. The extension vel non of the term was within the discretion of the judge and this Court will not inquire into whether or not that discretion was abused.
The evidence for the State discloses a clear case of murder; that for the appellant a case of manslaughter. On the evidence the only question for the jury was whether the appellant was guilty of murder or manslaughter, there being no evidence on which a claim that he acted in self-defense could be based. Over the objection of the appellant, the court admitted evidence, the effect of which, if any, was to re-enforce the State's claim that the appellant was guilty of murder. Whether this evidence was rightfully admitted or not is of no consequence for the reason that the conviction was for manslaughter only, of which on the appellant's own evidence, he was properly convicted.
There was no error in granting the State the instruction on manslaughter for the two reasons: (1) the evidence of the appellant justified it; and (2) if it did not and the case made by the evidence is one of murder or self-defense, the defendant cannot complain of an instruction for the State which permitted the finding of a verdict for manslaughter.
Affirmed.