Baker v. State, 48665
| Decision Date | 10 February 1976 |
| Docket Number | No. 48665,48665 |
| Citation | 327 So.2d 288 |
| Parties | George M. BAKER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Nichols, Gore & Hilburn, Poole & Marks, Jackson, Robertshaw & Merideth, J. Murray Akers, Greenville, Dannye Lee Hunter, Forest, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, INZER and WALKER, JJ.
The appellant, George M. Baker, was tried and convicted of the murder of his ex-wife, Patricia Coleman Baker, in the Circuit Court of the First Judicial District of Hinds County, Mississippi. From a verdict of guilty and a sentence to life imprisonment, he prosecutes this appeal. We affirm.
On the night of October 13, 1973, appellant Baker, after having dinner at a local restaurant, returned home with his second wife of ten years and told her that he would be 'right back.' The appellant then got into his truck, drove to the residence of his ex-wife, Patricia Coleman Baker, whom he had prearranged to meet outside her house, and shot her three times with a .44 magnum carbine rifle. He then returned to his home where he told his present wife, Joy Baker, 'I think Pat was shot.' In response to a question from her, he said 'There was this face and there was a loud noise.'
Baker entered a plea of not guilty by reason of insanity.
We will consider only those assignments of error which we fell warrant discussion.
The appellant first contends that the trial court erred in overruling his motion to quash the indictment and the special venire.
Prior to the jury being empaneled, appellant moved to quash the indictment on the ground that the members of the grand jury, the special venire and the petit jury were not selected from qualified electors or freeholders residing in the entire county. The grand jury, special venire and petit jury were selected from what is designated as Judicial District No. 1 of Hinds County, Mississippi. The appellant contends that the jurors were selected from this area of Hinds County under the mistaken assumption of law that Hinds County is divided into two judicial districts. He contends that such is not the case and that the county has not been divided into two judicial districts since 1906.
A review of the pertinent statutes is helpful. Hinds County was originally divided into two court districts in 1858 and this was brought forward in the Code of 1871 as follows:
§ 92. HINDS COUNTY is divided into two court districts with the following limits (established December 2d, 1858): The first district is composed of all that portion of Hinds county lying east of the range line between ranges one and two, west, with the place for holding the court therein, at the courthouse or city hall, at the city of Jackson.
§ 93. The second district is composed of all of that portion of Hinds county lying west of the range line between one and two, west, with the place of holding courts therein, at the court-house in the town of Raymond.
These statutes were not brought forward in any subsequent Code and the appellant contends that the Act of Adoption of each succeeding Code explicitly repealed all omitted laws of a general character. The sections of the Codes relied upon by appellant are as follows:
Mississippi Code of 1906, Act of Adoption:
§ 13. On and after the first day of October, 1906, all laws of a general character not brought forward and embodied in the Mississippi code of 1906 shall be thereafter repealed; but this shall not apply to any act of the legislature adopted at the present session thereof.
Mississippi Code of 1930, Act of Adoption:
§ 15. The Mississippi Code of 1930 shall take effect and be in force from and after the first day of November, 1930, and all laws of a general character not brought forward or embodied in said code, except laws granting exemptions from taxation for a period of years, shall be thereafter repealed; but this shall not apply to any act of the present legislature which is not incorporated in said code.
Also see Mississippi Code 1942 Annotated section 11 (1956) and Mississippi Code Annotated section 1-1-19 (1972).
In support of his contention that the statute which divided Hinds County into two separate judicial districts was a general law, appellant cites Carter v. Harrison County Election Commission, 1 183 So.2d 630 (Miss.1966) which dealt with an act dividing Harrison County into separate judicial districts-and which as a practical matter could only apply to Harrison County-where this Court held that the act was not in violation of Mississippi Constitution, Article 4, Section 90 (1890), which prohibits the enactment of local, private or special acts.
In construing Mississippi Code of 1906, section 13, which states that: 'On and after the first day of October, 1906, all laws of a general character not brought forward and embodied in the Mississippi code of 1906 shall be thereafter repealed . . .,' we must look to the intent of the Legislature. (Emphasis added).
We have held in a number of cases that in construing a statute the Court must seek the intention of the Legislature, and, knowing it, must adopt that interpretation which will meet the real meaning of the Legislature. Carter v. Harrison County Election Commission, supra; Beard v. Stanley,205 Miss. 723, 39 So.2d 317 (1949); Rawlings v. Ladner, 174 Miss. 611, 165 So. 427 (1936); Kennington v. Hemingway, 101 Miss. 259, 57 So. 809 (1911). Furthermore, the Court in construing a statute will not impute an unjust or unwise purpose to the Legislature when any other reasonable construction can save it from such imputation. Beard v. Stanley, supra; Hendrix v. Foote, 205 Miss. 1, 38 So.2d 111 (1948); Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844 (1922); Dunn v. Clinghan, 93 Miss. 310, 47 So. 503 (1908).
With these rules in mind, we find that the Mississippi Code of 1906 actually recognized the existence of two separate judicial districts in Hinds County and fixed the court terms for those districts in both the circuit and chancery courts. Miss. Code §§ 501, 680 (1906). Furthermore, since the enactment of the Mississippi Code of 1906, the Legislature has many times recognized the existence of two judicial districts in Hinds County by the enactment of numerous statutes dealing with the courts and court terms of those two districts. Miss. Code Anno. §§ 254, 451 (Hemingway 1917); Miss. Code Anno. §§ 259, 463 (Hemingway 1927); Miss. Code Anno. §§ 318, 473 (1930); Miss. Code 1942 Anno. §§ 1220, 1401 (1956); Miss. Code Anno. §§ 9-5-17, 9-7-23 (1972).
It is clear to us that the Legislature did not intend to repeal sections 92 and 93 of the Code of 1871 which divided Hinds County into two separate judicial districts. These two statutes, which referred to Hinds County by name and which only applied to Hinds County, were not of such a 'general character' as to be repealed by the Mississippi Code of 1906 when they were not brought forward into that Code.
It is next contended that the trial judge committed reversible error by a comment that he made when ruling on an objection.
The defense of insanity was based in part, on the residual effects of an alleged brain injury supposedly received by the appellant in September, 1971, when he fell from a ten-foot scaffold and sustained an injury to the head.
Two psychiatrists testified on appellant's behalf on the assumption that appellant sustained a brain injury as a result of the fall. Six other witnesses, including appellant's wife, testified as to what they considered personality changes which he underwent subsequent to the injury of September, 1971. Dr. Floy Moore, a psychiatrist, testified that appellant was psychotic on the night he shot and killed his ex-wife; that appellant did not know the nature and quality of his acts; and, that he did not, at the time, know the difference between right and wrong. Dr. Moore based his opinion on two primary observations, namely, a non-psychotic, organic brain syndrome with brain trauma and appellant's diabetic condition which was purportedly out of control and subject to influence by numerous emotional factors.
The appellant complains of the following colloquy between the judge and the prosecutors which occurred during the latter stages of the direct examination of Dr. Moore:
(By Dr. Moore)
A. . . .
Now, as I reconstructed the situation, these various factors seemed to have been present-very close disturbing factors and situations-these are very close to this particular episode. Remember, all through this, I am saying my feeling is the diabetes is out of control and the emotional factors are influencing it and that the brain trauma or brain injury has decreased his ability to function and respond.
MR. ROYALS (Assistant District Attorney):
Your Honor, I object to brain injury. I don't believe there is any evidence in here anywhere about any brain injury. That would be misleading.
There is no demonstrated organic brain injury, that's correct.
I'll overrule the objection and you can take care of that on cross examination.
No objection to the trial judge's remark was interposed by appellant at that stage of the proceedings and Dr. Moore continued his testimony, responding to questions for a time period covering eight pages of the record before the defense counsel objected to the court's statement. Appellant's counsel explained that he had delayed making known his objection to the court's remark because he wanted to save the court's time as far as getting through with the witness' testimony. It is evident that counsel did not, at the time, consider the court's statement to be of serious magnitude.
An objection to the testimony of a witness, conduct of opposing counsel or a remark of the court should be made contemporaneously with the occurrence or matter complained of so that the court may, when possible, correct the error with proper instructions to...
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