State v. Chambliss

• Decision Date: 15 February 1926
• Docket Number: 25319
• Court: Mississippi Supreme Court
• Parties: STATE et al. v. CHAMBLISS. [*]

107 So. 200

142 Miss. 256

STATE et al. v. CHAMBLISS. ^[*]

No. 25319

Supreme Court of Mississippi

February 15, 1926

APPEAL from chancery court of Lamar county, HON. T. P. DALE Chancellor.

Habeas corpus by Curtiss Chambliss against the State and H. C Norsworthy, sheriff. From a judgment discharging the relator from custody, the district attorney, representing the state and the sheriff appeal. Affirmed by an equally divided court.

Judgment affirmed.

Alexander Currie and F. M. Morris, for appellants.

I. The motion of the appellants to quash the writ should have been sustained. See section 2015, Hemingway's Code. We are aware that it is supposed that Patterson v. State, 71 Miss. 675, 15 So. 794, held section 2022, Hemingway's Code (section 2456, Code of 1906), to be directory only, but in the first place, there is a marked difference between that section providing where and when the writ shall be made returnable and said section 2015, Hemingway's Code 1917 (section 2449, Code of 1906) providing how the writ shall be obtained.

II. The appellee was being held in the county jail of Forrest county on the order of the circuit court of Forrest county, under an indictment charging him with murder in that county, and the habeas corpus court had no authority under the law to discharge the appellee. Emanuel & Giles, Slaves, v. State, 36 Miss. 627; Ex parte Grubbs, 79 Miss. 360, 30 So. 708; 25 Cent. Dig. Habeas Corpus, par. 4, 92. Under the settled law in this state, the habeas corpus court had absolutely no authority to discharge the appellee on a writ of habeas corpus.

III. The final order of the circuit court of Forrest county rendered in the case at the end of the trial and recorded on the minutes of the court, a certified copy of which was attached to the answer of the respondents as an exhibit, shows upon its face that there was no verdict of acquittal, but that when polled in open court each juror as he was polled answered, "We are unable to agree."

The circuit court adjudicated the facts upon which the order discharging the jury entering a mistrial and remanding the appellee to jail is based. It will be noted that this finding and adjudication of the facts was made not only upon the court's own knowledge of what transpired in the trial of the appellee, but upon evidence submitted in the hearing of the motion filed by the appellee to correct the minutes of the court and discharge the appellee; on the issue thereon joined by the appellants in the answer filed by them to said motion, the issue of fact thus joined being whether the appellee had been actually tried and acquitted on the merits, and the court found that the appellee had not been actually tried and acquitted upon the merits. Having acquiesced in and consented to all of the procedural matters, the mere formal exception taken by the appellee to the order of the court does not, of course, avail the appellee anything. The established rule of law is laid down in 23 Cyc., p. 1088.

The circuit court of Forrest county had jurisdiction to render and enter the order; and the order of the circuit court of Forrest county discharging the jury, entering a mistrial and remanding the appellee to the county jail of Forrest county to await the further order of the court is a valid order upon its face and was not subject to collateral attack in a habeas corpus proceeding. 23 Cyc., p. 1063.

IV. The order of the circuit court of Forrest county recorded on the minutes of that court shows that there is now pending in said circuit court, undisposed of, an indictment against the appellee, charging him with the crime of murder in said county, and said habeas corpus court had no authority in law to discharge the appellee under said writ of habeas corpus. The habeas corpus court had no jurisdiction, right, power or authority to inquire into the merits of the charge against the appellee. It could not question even the validity of the indictment, and especially after the circuit court of Forrest county had ordered the appellee held in the county jail for trial under the indictment.

We have in this state a well-regulated system, procedure, and practice and under that established system, the court of habeas corpus is not a court of review or appeal and it has no authority to assail collaterally the order or judgment of any other court of competent jurisdiction. Emanuel & Giles, Slaves, v. The State, 36 Miss. 627; Ex parte Grubbs, 79 Miss. 360, 30 So. 708; 25 Cent. Dig., Habeas Corpus, pars. 4 and 92; State ex rel. Kelly v. Wolfer, 119 Minn. 368.

V. The alleged or pretended verdict on which the appellee was discharged by said habeas corpus court is not, by the record in the case and the law, a verdict at all. The jury undertook to return a verdict which it had no authority in law to return and on a misunderstanding at that, and to say that the court (trial judge) had no authority or right to inquire of the jury under such facts and circumstances whether it understood the agreement would be thus to hamper and embarrass and distress, if not to thwart, the administration of justice. The settled rule of law in this country is stated in 38 Cyc. 38, p. 1876. The power of the trial judge in this respect is laid down in Abbott's Trial Brief, Civil Jury Trials (2 Ed.), pp. 536-537, par. 10.

It is also the established rule of law in this country that a juror has the right to dissent after the verdict is received, and before the verdict has been recorded on the minutes of the court, the jury discharged and its relation to the case ended. 38 Cyc., p. 1875, par. 4; Abbott's Trial Brief, Civil Jury Trials (2d. Ed.), p. 536, par. 9; Gordan v. State, 158 Wisc. 32, 147 N.W. 998; 58 Ga. 545; Commonwealth v. Huston, 46 Pa.Super. 172, Reg. v. Vodden, 6 Cox. C. C. 226; Turbaville v. State, 219 (Aff. 232 Pa. 209, 81 A. 1135).

The settled rule of law seems to be in criminal cases as well as civil cases that it is only after the verdict has been recorded and the jury, after being discharged, have separated, that they cannot be recalled to amend their verdict. Sargent v. State, 11 Ohio 472; Mills v. Commonwealth, 7 Leigh 751; People v. Lee Yune Cong, 94 Cal. 379, 29 P. 776; State v. Dawkins, 32 S.C. 17, 10 S.E. 772; Allen v. State, 85 Wis. 22, 54 N.W. 999; Simmons, plaintiff in error, v. U.S. 35 L.Ed. 968, 101 S.W. 381, 46 Ind. 132, 126 N.W. 737, 42 Conn. 232, 67 S.E. 1000.

A defendant in a criminal case cannot be allowed to take undue advantage of any action in the course of the trial induced by his own conduct or agreement or request. Here in this case, the defendant, Chambliss, acting by and through his attorneys of record, procured an agreement from the state, sanctioned by the court, to accept lifetime imprisonment in the state penitentiary. Yet he now undertakes to assert a constitutional acquittal which must be an actual acquittal on the merits. State v. White, 71 Kans. 356, 80 P. 589, 6 Ann. Cases 132; State v. Hawkins, 45 Ore. 110, 75 P. 887; People v. Meakin, 61 Hun. 327, 15 N.Y.S. 917, 8 N. Y. Cr. Rep. 308; Lewis v. State, 121 Ala. 1, 25 So. 1017; Commonwealth v. Sholes, 13 Allen, 554; People v. Garner, 62 Minn. 307, 29 N.W. 19; People v. White, 68 Minn. 648, 37 N.W. 34; Stewart v. State, 15 Ohio St. 155; People v. Kerm, 8 Utah 268, 30 P. 988.

The discharge of the appellee under the writ of habeas corpus was gross and flagrant error.

Note. No brief filed for appellee.

ETHRIDGE, J. Chief Justice Taylor. ANDERSON and MCGOWEN, JJ., concurring. SMITH, C. J., dissenting.

OPINION

ETHRIDGE, J.

The appellee, Curtis Chambliss, sued out a writ of habeas corpus, alleging that on the 14th day of May, 1925, he was charged with murder by a true bill of indictment, returned by a legally constituted grand jury of Forrest county, Miss., at the April, 1925, term of the circuit court; that on the 14th day of May, 1925, as aforesaid, he was placed on trial in said court on said indictment, and, after being arraigned on said charge, entered a plea of not guilty; that on said date, in the circuit court, a court of competent jurisdiction, a jury of twelve good and lawful men of Forrest county were duly qualified, impaneled, charged, etc., which said jury, after hearing all the evidence both for the state and the defendant, and after both sides had rested their case, and the entire matter having been submitted to the jury upon its merits, returned into open court, of its own volition, a verdict of "not guilty;" that the court thereupon inquired of the jury, in the presence of the defendant, if it had reached a verdict, whereupon the court directed the jury to hand the verdict to the clerk, which was done, and the verdict was accepted by the clerk, read in open court, and by order of the court filed by the clerk (a copy of the indictment and verdict were made exhibits to the petition for writ of habeas corpus), whereupon it was alleged that it was the duty of the court to discharge the defendant, Curtis Chambliss, and liberate him, and not to again place him in jeopardy for the same offense. But the court refused and failed to do this, and returned the jury to the jury room a second time to further consider its verdict. After the jury had remained in its room for about two hours, it was called out by the court, who found that the jury was unable to reach any other verdict than the one aforesaid, whereupon the court, of its own motion, entered a mistrial on its docket, and set the case for rehearing on June 2, 1925, to which action defendant's counsel then and there excepted in open court.

It appears from the record that Curtis Chambliss was placed on trial and the trial proceeded in the regular and usual order until the conclusion of the evidence both for the state and the defendant, at which time the...