Beckwith v. State, 91-IA-1207

Citation615 So.2d 1134
Decision Date16 December 1992
Docket NumberNo. 91-IA-1207,91-IA-1207
PartiesByron De La BECKWITH v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Merrida Coxwell, Stanfield Carmody & Coxwell, Jim Kitchens, Kitchens & Ellis, Jackson, for appellant.

Edward J. Peters, Hinds County Dist. Atty., Bobby B. DeLaughter, Asst. Dist. Atty., Jackson, for appellee.

En Banc.

HAWKINS, Presiding Justice, for the Court:

Medgar Evers, a black civil rights activist and leader in the turbulent 1950s-1960s civil rights struggles, was murdered at his home in Jackson June 12, 1963. Byron De La Beckwith, a vocal pro-segregationist and white supremacist in this State, was arrested June 23 and indicted for Evers' murder at the July, 1963, term of the grand jury of Hinds County. He stood trial in February, 1964, and following a hung jury, a mistrial was ordered by the circuit judge February 7. He again stood trial in April, and following another hung jury, the circuit judge declared a mistrial April 17, 1964. Until his second trial, Beckwith had been incarcerated without bail.

Following his second trial Beckwith was released on $10,000 bail. He ran a markedly unsuccessful campaign for Lieutenant Governor in 1967. The district attorney prosecuting the case did not seek re-election, and his successor on March 10, 1969, moved the court to enter a nolle prosequi of the indictment. The three circuit judges of the Seventh Circuit Court District signed the order granting a nolle prosequi. There was no objection by the defense to the entry of the nolle prosequi.

Over the years this case has received considerable public attention by the press, but no further effort was made by the State to initiate criminal proceedings against Beckwith until the December, 1990, term of the Hinds County grand jury when he again was indicted for murder. Beckwith, then living in Tennessee, following an extradition contest in the Tennessee courts, was extradited to Mississippi and incarcerated in a Hinds County jail.

His request for bail was denied by the circuit judge, and affirmed on appeal by this Court's order of March 25, 1992. He has been in jail in this State since October, 1991.

In April 1992, he sought dismissal of the indictment against him on three constitutional grounds. The circuit court on August 4, 1992, denied his motion, and Beckwith then petitioned this Court for an interlocutory appeal, pursuant to our Rule 5, Mississippi Supreme Court Rules. This Court by August 26, 1992, Order granted an interlocutory appeal. 1 There should be no necessity to emphasize the obvious: This case is not before us from a final conviction. It is before us on an interlocutory appeal in which Beckwith claims a Constitutional right not to even be put to trial, seeking this Court to intervene in circuit court criminal trial proceedings instituted by the State of Mississippi, stop them, and order his discharge.

This Court does not equate the right not to be wrongfully convicted as somehow giving a defendant a right not to be put to trial at all. We adhere to the wisdom stated by the United States Supreme Court in Cobbledick v. United States, 309 U.S. 323 at 325, 60 S.Ct. 540 at 541, 84 L.Ed. 783 at 785 (1940):

An accused is entitled to scrupulous observance of constitutional safeguards. But encouragement of delay is fatal to the vindication of the criminal law. Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court's rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal. (Emphasis added.)

On his appeal Beckwith seeks the dismissal of the indictment and his discharge from custody on three grounds:

(1) Denial of a speedy trial. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." Amendment 6, U.S. Constitution. "In all criminal prosecutions the accused shall have a right to a ... speedy and public trial by an impartial jury of the county where the offense was committed...." Art. 3, Sec. 26, Mississippi Constitution.

(2) Denial of due process. "No person shall be ... deprived of life, liberty or property, without due process of law...." Amendment 5, U.S. Constitution.

(3) Double jeopardy. "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." Amendment 5, U.S. Constitution.

We find much wisdom in the principles enunciated in the Federal Courts on questions such as those raised here, and today hold that in applying Rule 5 to any attempted interlocutory appeal in which a defendant seeks to have all criminal charges against him dismissed and for his final discharge, we will adhere to the same principles and criteria of the Federal Courts.

The interlocutory appeal granted Beckwith in this case was not based upon any Constitutional mandate or statute giving him any such right, but solely upon a rule promulgated by this Court. While Beckwith's indictment, arrest and anticipated trial may raise serious and troubling Constitutional questions, he clearly has no Constitutional or statutory right to an interlocutory appeal.

After mature consideration we have concluded that the first two grounds asserted by Beckwith afford no basis for an interlocutory appeal, and decline to address them. We do address the final ground and find it without merit. Our reasons follow.


The principles and criteria adhered to in the Federal courts are illustrated in three U.S. Supreme Court decisions: Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

In Abney v. United States, the Court granted certiorari to specifically address the question of whether or not an appeal would be permitted from a district court We approach the threshold appealability question with two principles in mind. First, it is well settled that there is no constitutional right to an appeal. McKane v Durston, 153 US 684, 38 L Ed 867, 14 S Ct 913 (1894). Indeed, for a century after this Court was established, no appeal as of right existed in criminal cases, and, as a result, appellate review of criminal convictions was rarely allowed. As the Court described this period in Reetz v Michigan, 188 US 505, 47 L Ed 563, 23 S Ct 390 (1903):

order denying a defense motion to dismiss criminal charges on the basis that the defendant's double jeopardy rights under the Fifth Amendment would be violated by a second trial. The Court first analyzed why no appeals are allowed other than those from a final judgment of conviction as authorized by 28 U.S.C.S. Sec. 1291. 2

"[T]rials under the Federal practice for even the gravest offences ended in the trial court, except in cases where two judges were present and certified a question of law to this court." Id., at 508, 47 L Ed 563, 23 S Ct 390 [at 392].

The right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute--in this case, 28 USC Sec. 1291 [28 USCS Sec. 1291].

Second, since appeals of right have been authorized by Congress in criminal cases, as in civil cases, there has been a firm congressional policy against interlocutory or "piecemeal" appeals and courts have consistently given effect to that policy. Finality of judgment has been required as a predicate for federal appellate jurisdiction.

"The general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius judgment." DiBella v United States, 369 US 121, 124, 7 L Ed 2d 614, 82 S Ct 654 (1962).

Accord, Cobbledick v United States, 309 US 323, 324-326, 84 L Ed 783, 60 S Ct 540 [541-542] (1940). This principle is currently embodied in 28 USC Sec. 1291 [28 USCS Sec. 1291] which grants the federal courts of appeals jurisdiction to review "all final decisions of the district courts," both civil and criminal. Adherence to this rule of finality has been particularly stringent in criminal prosecutions because "the delays and disruptions attendant upon intermediate appeal," which the rule is designed to avoid, "are especially inimical to the effective and fair administration of the criminal law." DiBella, supra, [369 U.S.] at 126, 7 L Ed 2d 614, 82 S Ct 654 . Accord, Cobbledick, supra, [309 U.S.] at 324-326, 84 L Ed 783, 60 S Ct 540 [541-542]. (Footnotes omitted; brackets original.)

Abney v. United States, 431 U.S. at 656-657, 97 S.Ct. at 2038-2039, 52 L.Ed.2d at 657-658.

The Court then distinguished an appeal from an order overruling a motion to dismiss an indictment on the ground of double jeopardy from other interlocutory orders in a district court. A motion to dismiss on the ground of double jeopardy involved a right totally independent and collateral to the issues in the trial, 3 and was a "final decision" as contemplated by Sec. 1291.

The Court noted that while a pretrial denial of a motion to dismiss an indictment on double jeopardy grounds "is obviously not 'final' in the sense that it terminates the criminal proceedings," it nonetheless fell "within the so-called 'collateral order' exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan," and was a "final decision" within the meaning of Sec. 1291. Abney v. United States, 431 U.S. at 657, 97 S.Ct. at 2039, 52 L.Ed.2d at 658-659. The Court observed that the double jeopardy clause protected an accused beyond that of being twice convicted for the same offense, it protected the...

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