Summary
In Williams v. State, 239 Miss. 839, 125 So.2d 535 (1960), the Court held that, in order to obtain a subpoena duces tecum, it is required that a verified petition be filed in the case, describing the papers or books which are desired with as much certainty and particularity as is practical, considering all the circumstances of the case, so that the judge may know their character and whether the request be reasonable and proper.
Summary of this case from Griffin v. StateOpinion
No. 41733.
December 19, 1960.
1. Witnesses — subpoena duces tecum — to obtain.
To obtain a subpoena duces tecum, a verified petition must be filed in the case, describing the papers or books sought with as much certainty and particularity as is practicable, considering all the circumstances, so that judge may know their character and whether request is reasonable and proper as respects their situation and volume, and so that witness may know what to bring.
2. Witnesses — subpoena duces tecum — petition for must show what.
A petition for subpoena duces tecum must state facts sufficient to show that papers and books sought are material as evidence in the case, and to show their purpose and materiality, that a judge may protect witness against unnecessary or irrelevant production.
3. Criminal law — witnesses — subpoena duces tecum — failure to order issuance of requested subpoena not reversible error.
Where no petition for subpoena duces tecum was filed in criminal case, and record sought was intended to show that that State's prisoner-witness, who lacked 10 months before being eligible for parole and who had four years left on penitentiary sentence, had applied for parole, failure to order issuance of requested subpoena was not reversible error. Rule 11, Supreme Court Rules.
4. Appeal — evidence — no reversal for harmless error.
Erroneous admission or exclusion of evidence is not a ground for reversal unless, when looking at entire record, it can be seen that there has been a miscarriage of justice. Rule 11, Supreme Court Rules.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Forrest County; STANTON HALL, Judge.
Robert E. Arrington, Hattiesburg, for appellant.
I. The verdict of the jury is contrary to the law and the evidence.
II. The verdict of the jury is contrary to the overwhelming weight of the evidence.
III. The Court erred in not granting the subpoena duces tecum for the records of the State Parole Board.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. As to the sufficiency of the evidence, the State's case was a strong one for conviction and the defense attempted to establish primarily a defense of alibi. This is a typical conflict of testimony which could be resolved only by the jury.
II. As to the refusal of the Court to grant a subpoena duces tecum on the secretary of the Probation and Parole Board in an attempt to impeach the testimony of Harold Stanley, chief prosecuting witness for the State, Stanley was an inmate of the penitentiary and informed on appellant. The defense attempted by cross-examination of Stanley to show that he was informing on appellant in an effort to put himself in the good graces of the authorities, particularly the Probation and Parole Board. On the witness stand he denied having an application for a parole on file and the subpoena duces tecum was requested "to show that there is an application pending at this time". The action of the trial court in denying the subpoena duces tecum was proper and appellant could not possibly have been prejudiced thereby. The record affirmatively shows that Stanley still had four years left on the sentence he was serving and that he lacked ten months with parole time. This stands unrefuted in the record and, therefore, it would make no difference whether Stanley had applied for a parole.
III. Furthermore, an examination of the records in the office of the State Probation and Parole Board will show this Court that the granting of the subpoena duces tecum and the presentation of the records of that Board in the trial of this case would not have impeached Stanley's testimony and consequently no harm was conceivably done by the action of the Court. The file on Harold Stanley in the office of the Probation and Parole Board does not contain an application for parole. This Court has held that judicial notice will be taken of coordinate branches of the state government, and the records thereof, and their contents. Adams v. Standard Oil Co. of Ky., 97 Miss. 879, 53 So. 692; Mississippi-Gulfport Compress Warehouse, Inc. v. Public Service Comm., 189 Miss. 166, 196 So. 783; Stone v. Robinson, Sheriff, 219 Miss. 456, 60 So.2d 206; Witherspoon v. State, 138 Miss. 310, 103 So. 134.
IV. Not only will the court take judicial notice of such records, but the Court will take such judicial notice and resort to every proper method of ascertaining from the departments whatever it is required judicially to know, but does not actually know. Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407, 887.
The appellant, Elmer Bethea Williams, alias "Blackie" Williams, and William Shelton Madden and Harold Stanley were jointly indicted for burglary in connection with the breaking and entering of the place of business of the Rebel Oil Company, a corporation, at Hattiesburg, Mississippi, when an iron safe weighing approximately 350 pounds was taken, stolen and carried away from the said building and the sum of approximately $450 in money was taken, and the said iron safe then thrown into Leaf River.
Harold Stanley, an inmate of the penitentiary at Parchman, after having made a disclosure to the officers of the alleged facts in connection with the burglary and larceny, was subpoenaed as a witness and testified for the State in the trial. Stanley testified that on the night of July 25, 1958, he, in company with the appellant and Madden, went to the place of business of the Rebel Oil Company in Hattiesburg at approximately one o'clock a.m. and that he and Madden went into the building by breaking into a side window and that the appellant drove the car around the building and kept a lookout until the witness and Madden were ready to load the iron safe into the car; that the appellant then drove the car to Leaf River; that they crossed over the river bridge and turned into a side road leading into the woods and that they there robbed the safe by breaking it open with a three pound sledge hammer; divided approximately $448 among the three of them and thereafter threw the safe into the river.
At the conclusion of the State's testimony, the attorney for the appellant dictated into the record being made in the circuit court the following: "In view of the testimony of the witness, Harold Stanley, I'd like to make also a motion that a subpoena duces tecum be issued for the records of the Secretary of the State Parole Board to show that there is an application pending at this time." The district attorney objected to the motion and the objection was sustained. This is all that the record discloses as to what transpired in regard to the appellant's motion for a subpoena duces tecum. (Hn 1) To obtain a subpoena duces tecum it is required that a verified petition be filed in the case, describing the papers or books which are desired with as much certainty and particularity as is practicable, considering all the circumstances of the case, so that the judge may know their character and whether the request be reasonable and proper as respects their situation and volume, and that the witness so subpoenaed may know what to bring; (Hn 2) and the petition must state sufficient facts to show that the papers and books sought are material as evidence in the case and for what purpose and in what respect they are material so that the judge may protect the witness against an unnecessary or irrelevant production. Cf. Sec. 553, 2d Ed., Griffith's Miss. Chan. Practice.
(Hn 3) In the instant case there was no petition in writing meeting the foregoing requirements. Moreover, the fact of whether or not the witness lacked ten months before he would have been eligible for parole, and that he had four years left of his sentence in the penitentiary could not have been determinative of whether or not he was telling the truth when implicating the appellant in the burglary and larceny. (Hn 4) Moreover, under Rule 11 of this Court, the erroneous admission or exclusion of evidence by the trial court is not a ground for a reversal of the case unless when looking at the entire record it can be seen that there has been a miscarriage of justice. We don't think that the failure of the trial court to order the issuance of a subpoena duces tecum, under the motion as filed, constituted reversible error. This is the only assignment of error made and which was argued in the appellant's brief.
The judgment and sentence of the trial court must, therefore, be affirmed.
Affirmed.
Lee, Kyle, Arrington and McElroy, JJ., concur.