Opinion
No. 39084.
March 15, 1954.
See headnotes for Barnes v. State, Cause No. 39083, reported in 220 Miss. 248.
APPEAL from the circuit court of Marion County; SEBE DALE, Judge.
Kelley J. Hammond, R.H. Dale, Columbia, for appellant.
I. The Court erred in refusing to grant appellant a new trial on the grounds stated in the motion therefor. Fisher v. State, 145 Miss. 116, 110 So. 361; Green v. State, 97 Miss. 834, 53 So. 415; 39 Am. Jur., New Trial, Sec. 48 p. 68.
II. The record shows that the judge had prejudged the sentence in this case and that defendant was thereby denied due process of law. Ex parte Tucker, 164 Miss. 20, 143 So. 700; Green v. State, supra; Haslam v. Morrison, 190 P.2d 520-3; State v. Byington, Utah, 5 A.L.R. 2d 1393; Sec. 1605, Code 1942.
III. The trial judge, as shown by the record, had an interest in the outcome of this cause within the meaning of Section 165, Mississippi Constitution 1890, of such a nature that he should have granted a new trial and recused himself from hearing same. Garrett v. State, 187 Miss. 441, 193 So. 452.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. There is nothing whatsoever in this record in the trial of this case on its merits or in the evidence in support of appellant's motion for a new trial that even indicates that the trial judge was guilty of any conduct, intentionally or unintentionally, that could be construed to have had an influence upon the verdict of the jury in this cause. The record shows that the trial judge, during the progress of the trial of this case on its merits, gave to the appellant the benefit of every doubt in the admission of testimony and in granting instructions requested by the appellant. The proof fully supports the verdict of the jury.
II. Section 2613 of Code of 1942 vests in the trial judge a broad discretion as to fine and sentence, and it is solely in the discretion of the trial judge as to whether he will impose the minimum or maximum sentence prescribed by said section. Lester v. State, 209 Miss. 171, 46 So.2d 109; Sec. 2613, Code 1942.
III. There is nothing in this record to show that the trial judge had an interest in the outcome of this cause within the meaning of Section 165, Mississippi Constitution of 1890. Garrett v. State, 187 Miss. 441, 193 So. 452.
This case is controlled in all essential particulars in regard to the assignments of error on the appeal here by the opinion in the case of Stanley Barnes v. State, Cause No. 39,083, wherein the decision was rendered on March 8, 1954, not yet reported either in the Advance Sheets or bound volumes of the law reports, and the cause must therefore be reversed and remanded.
Reversed and remanded.
Lee, Arrington, Ethridge and Gillespie, JJ., concur.