Barron v. State

• Decision Date: 06 July 1914
• Docket Number: 17012
• Citation: 107 Miss. 663,65 So. 648
• Court: Mississippi Supreme Court
• Parties: LE BARRON v. STATE

65 So. 648

107 Miss. 663

LE BARRON v. STATE

No. 17012

Supreme Court of Mississippi

July 6, 1914

APPEAL from the circuit court of Lamar county. HON. A. E WEATHERSBY, Judge.

Ed Le Barron was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Tally &amp Mayson, for the appellant.

At the very threshold of this investigation we find that the correctness of the action of the court is challenged in overruling the motion of appellant to quash the indictment returned against him. The testimony conclusively shows that both the county attorney and the district attorney were in the grand jury room while that body had the case of appellant under investigation. In our judgment, the evidence abundantly shows that the presence of those gentlemen in the grand jury room largely influenced the jury in the finding of the indictment. In fact, the conclusion seems almost inescapable that but for the presence of the district attorney and county attorney in the grand jury room no indictment would have been returned. The grand jury is a very important arm of the court, and except for the rules and regulations prescribed by the court and the law for its government, it has a right to discharge its duties in such manner as it sees proper consistent with the due performance of the duty it owes to the public service. It has always been considered highly improper for the prosecuting officer to interfere intermeddle with, or to urge the grand jury to return a bill of indictment against any person. We take it that the position could not be challenged that the district attorney or county attorney has no business in the grand jury room, except when called upon by that body for information touching any matter that may be presented in the manner required by law. Section 6 of chapter 6 of the Code of 1875, provides that the district attorney "shall attend the deliberations of the grand jury only whenever they may be required by the grand jury, and shall give the necessary information touching such case in order that the same may be presented in the manner prescribed by law." All Codes subsequent to that of 1857 have identically the same provisions.

See section 214, Code of 1871; sec. 256, Code of 1880; sec. 1556, Code of 1992; and sec. 1663, Code of 1906. It is true that section 4 of chapter 112 of the Act of 1910, creating the officer of county prosecuting attorney, provides that he shall represent the state and appear for the state in all matters coming before the grand jury of his county;" but assuredly the county attorney has no greater power conferred upon him than the law confers upon the district attorney, as he is a subordinate officer and we would take it that when the statute says he shall appear before the grand jury his duties are prescribed and limited by the several statutes heretofore cited for the government of district attorney's, and consequently he can give information when called upon, touching the law of the case, and not prosecute supposed defendants before the grand jury while their cases are being investigated, as he would parties who have indictments preferred against them, in a trial before a petit jury.

We think the views above expressed are in accord with those announced by this court in State v. Coulter, 61 So. 706. We respectfully submit that the fourth assignment of error is also well taken. The testimony of the witness, Scharbrough, clearly invades the province of the jury. It was for the jury to say and conclude as to the relative positions of the several parties and the angle in which the bullet went.

It was shown by the testimony of a witness that a correct photograph or photographs were made of the house in which the tragedy was enacted and as well as of the adjacent structure and building. The appellant sought to introduce these photographs in evidence after having made the preliminary proof that the same were correct representations, but the court declines to permit the same to be introduced. This was clearly erroneous.

The universal opinion is that photographs may be used as secondary evidence on the theory that objects which they represent or delineate, cannot themselves be placed before the jury. The rule is universal so far as we have been able to find that photographs, when shown to be correct, and represent objects and surrounding circumstance which throws light on any of the matters under investigation, are properly admissible in evidence. In fact, it appears to us that such testimony would be above as valuable as could be adduced and it is universally agreed that all mankind can comprehend better any matter when the same is addressed to the eye rather than the understanding. One can very often get a better idea from photographs or pictures of any object at a moment's glance than they could by reading a whole volume of testimony descriptive thereof. What the witness says about the relative positions of objects is secondary evidence, then why not have a correct delination by photograph, which testimony is certainly as valuable and can be more readily understood? It seems that the photographs are admissible in evidence in both civil and criminal cases wherever secondary evidence is admissible. Baustian v. Young, 75 Am. St. Rep. 462, and monographic note beginning on page 468 where the subject of admissibility of photographs in evidence is practically exhausted. We, therefore, submit that the errors committed on the trial of the cause in the court below are such that it ought to be reversed, remanded and a new trial awarded.

R. D. Lainer, for the appellant.

The district attorney, under section 1663, of the Code of 1906, is required to attend the deliberations of the grand jury "whenever he may be required by the grand jury," etc. This is the only license or authority for his presence there at any time, and then only as an adviser of the grand jury as to the law covering the case under investigation.

Section 4, of chapter 112, of the Acts of 1908, being the original Act creating the office of county prosecuting attorney for this state in defining the duties and prerogatives of this purely statutory officer, among other things makes it his duty "to represent the state and appear for the state in all matters coming before the grand jury for his county." But section 5, of chapter 253, of the Acts of 1912, amendatory of chapter 112, of the Acts of 1908, expressly takes away from this officer the duty, or right even, to "appear before the grand jury." He is by the latter act only authorized to "represent the state in all matters coming before the grand jury of his county. We do not understand it to be the policy of this state in its administration of the criminal law to permit either the prosecution or the accused to be "represented" in the grand jury room, nor is it the policy of our law to permit the state to be "represented" there. To hold that under the Act of 1912, chapter 253 thereof, the county prosecuting attorney is authorized to "represent" the state in matters coming before the grand jury for investigation, then the act confers upon him a greater power than is given to the district attorney under the law, for he, the district attorney, can only appear as an adviser of the grand jury. We must look to chapter 253, of the act of 1912, and to that alone for the powers, duties and prerogatives of the county prosecuting attorney, and if that act conferred upon him the right to appear in the grand jury room, even during the deliberations of that body, he appears there as an advocate of the state, with all the privileges and prerogatives of an advocate; and this we understand to be contrary to the policy of our law. We are aware that this court has held, in the case of State v. Coulter, 61 So. 706, that the county prosecuting attorney has this right to appear in the grand jury room during its deliberations, and that this is his duty, and while we have no desire to be placed in the attitude of differing with this court in its construction of the law, yet we feel constrained to present to the court our construction of the law creating the office of county prosecuting attorney and limiting and defining his powers and duties, in so far as the same may have bearing on the case now under consideration.

Should this court adhere to its ruling in the Coulter case above cited to the effect that the mere presence of the county prosecuting attorney in the grand jury room while that body is deliberating, and before vote taken on the finding of an indictment, does not vitiate an indictment so found, then we submit that inasmuch as both the district attorney and the county prosecuting attorney were undisputably in the grand jury room while the grand jury was deciding this case by their vote, under the rule as laid down in the case of State v. Coulter, above cited, their presence there at that time was fatal to any indictment as voted on and returned, and this motion to quash should have prevailed. Mr. Justice PRICE, in the case of Blau v. State, 34 So. 153, in reversing that case on motion to quash the indictment, referring to the grand jury, uses this language: "We must keep 'that body' pure; its findings unaffected by power, fear, sympathy, or public sentiment. In that way only can it protect the rich, the poor, the humblest and the greatest in the land, alike."

We refer the court to the following cases: Durr v. State, 53 Miss. 427; Welch v. State, 68 Miss. 341, 8 So. 673; Wilson v. State, 18 So. 225; Blau v. State, 82 Miss. 517, 34 So. 153; State v. Coulter, 61 So. 706.

The third and fourth assignment of error may be considered together. The witness, Scarborough, was permitted, on his direct examination, to give his opinion as to the angle in which the bullet which...