Boatwright v. State

• Decision Date: 22 December 1919
• Docket Number: 20878
• Citation: 120 Miss. 883,83 So. 311
• Court: Mississippi Supreme Court
• Parties: BOATWRIGHT v. STATE

83 So. 311

120 Miss. 883

BOATWRIGHT v. STATE

No. 20878

Supreme Court of Mississippi

December 22, 1919

1 HOMICIDE. Evidence of threats admissible.

In a prosecution for the murder of a constable, evidence that the defendant, a deserter from the army made threats several weeks before the homicide that he would kill any officer who attempted to arrest him, were admissible.

2. TIMELY SERVICE OF COPY OF INDICTMENT AND SPECIAL VENIRE.

Under Code 1906, section 1606 (Hemingway's Code, section 1373) where a defendant accused of murder was served with a copy of the indictment and special venire on Saturday afternoon at four o'clock and the venire was returnable and the case was called for trial on the following Monday morning at nine o'clock. This was a compliance with Code 1906, section 1481 (Hemingway's Code, section 1239), requiring the service to be one entire day before the trial.

3 ARREST. Homicide. Right to arrest army deserters without warrant.

Under Act of Congress, June 18, 1898, section 6 (U. S. Compt. St section 2297), a constable had the right to arrest a deserter from the army without warrant and in such case defendant's act in killing such constable was not in resistance of an illegal arrest.

APPEAL from the circuit court of Lauderdale county. HON. R. W HEIDELBERG, Judge.

Beeman Boatwright was convicted of murder and appeals.

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

Judgment affirmed.

C. B. Cameron, for appellant.

The copy of venire summoned and copy of indictment were served on appellant on Saturday afternoon at 4 o'clock and appellant put to trial over his objection on the following Monday.

The statute in question is section 1481 of the Code of 1906, and is as follows: (1481) "Proceedings after indictment: in capital cases, copy of indictment and special venire served to be given; any person indicted for a capital crime shall, if demanded by him, by motion in writing, before the completion of the drawing of the special venire have a copy of the indictment and a list of the special venire summoned for his trial, delivered to him or his counsel at least one entire day before said trial," etc.

Appellant contends that the "one entire day" mentioned in the statute means a judicial day--a day set for work and that it was never intended by the legislature to mean that Sunday should be considered the "one entire day."

In construing the statute let's look to the intention and purpose of same. This court speaking in the case of Friar v. State, 3 How. 422, as to the purpose of a similar statute, said: "This is certainly a right to which he is strictly entitled by the statute of this state, to enable him to prepare his defense and to make his challenge to the jurors."

The supreme court of Alabama in case of Haisten v. State, 59 So. 363, says as to purpose of like statute: "This plain object and purpose of the statute in requiring a service on the defendant of these copies is to afford him suitable and reasonable time in which to prepare his defense and get ready for trial. The service was not made on the defendant until the second day after the jury was drawn and the order entered, and then at a time when the defendant was almost immediately thereafter put upon his trial without a fair and suitable opportunity to consider the jury lists and prepare his defense after the service of copies. This was not a compliance with either. The letter or spirit of the mandatory statute which the lawmakers have in their wisdom seen fit to enact for the benefit and protection of those charged with the commission of the highest crime known to our law and which one charged with such a crime has a right to rely upon the strict and fair compliance within the preparation of his defense when brought to the bar of justice."

Again in the same case the court quoted: "The provisions of the statutes requiring the service of a copy of the indictment and jury list in capital felonies are mandatory and a failure to comply with such statutes strictly is fatal error, for the defendant is entitled as a matter of right to the protection afforded by them." "Citing following cases from Alabama courts: Welch v. State, 1 Ala.App. 144, 56 S.W. 11; State v. McLendon, 1 Stewart 195; Parsons v. State, 22 Ala. 50; Morgan v. State, 48 Ala. 65; Bain v. State, 70 Ala. 4; Brown v. State, 128 Ala. 12, 29 So. 200; Jackson v. State, 50 So. 118.

The case of Roberson v. State, 50 So. 345, from Alabama supreme court recognized the exclusion of Sunday in the computation of "one entire day" under the Alabama statute. The case of Nixon v. State reported in 2 Smedes and Marshall on page 497, is authority for the contention made by appellant to the effect that the words "one entire day" before trial mean one entire judicial day. The case of Dorrah v. State, reported in 44 Miss. at page 789, is authority for proposition that if list of jury not served on defendant at proper time, that is good reason to postpone case until the accused had time allowed by law to examine and purge the panels is stated.

I have been unable to find any authority directly in point on this question, that is to say that passes on the direct question as to whether Sunday is to be reckoned or excluded, except the Alabama Case, supra.

I submit that Sunday should not be reckoned in the computation of time even if you apply the computation statute for the reason that Sunday as given was the last day and not an intervening day and hence under the statute Sunday being the last day, it should be excluded and under authority of Nixon case the fractional part of Saturday cannot be computed, so he was entitled to the entire day of Monday before he was called upon to enter his trial.

This court held that the word "day" as used in the constitution section 72 thereof means a whole day of twenty-four hours from twelve midnight of one night to twelve midnight of following night. Carter v. Henry, 87 Miss. 411, 39 So. 690; State v. Michel, 52 La. Am., 27 So. 565, citing 26 Am. & Eng. Ency. Law, page 10; Haley v. Young, 134 Mass. 266, Anonymous, 2 Hill, 375; Thayer v. Felt, 4 Polk. 354; Hammin v. Tourtellott, 10 Allen 494; Cunningham v. Mahan, 112 Mass. 59; Burrage v. State, 101 Miss. 598.

The court permitted state to give in evidence declarations of witness Beall alleged to have been made five weeks before appellant got him a gun like the one he had and that if he had one like it no officers could arrest them.

The entire testimony of this witness was incompetent under the authorities. See case of State v. Laque from supreme court of Louisiana reported in 6 So. 787. People v. Bazy, 67 Cal. 223, 7 P. 643; State v. Weaver, 57 Iowa 730, 11 P. 675; State v. Barefiled, 29 N.C. 299; Abernathy v. Comm., 101 P. 332; Ogletree v. State, 28 Ala. 693; Ford v. State, 71 Ala. 385; Carr v. State, 23 Neb. 749.

If the conversation of the appellant with witness Beall was introduced for the purpose of showing threats by appellant then it was inadmissible. No threats made, none against deceased. Threats against policeman did not include deceased. Shaw v. State, 30 So. 42. The first and second instructions granted the state--Record Vol. 2, page 392, are errors, I respectfully submit. These instructions told the jury in effect that Culpepper had a right to arrest the appellant without a warranty if they believed from the testimony that appellant was a deserter from the army. These instructions ignore the proposition of law that the arrest must be legal.

We submit that it was an attempt to make an unlawful arrest for the reason that it does not appear from the testimony that the officer was armed with a warrant issued by some court of competent jurisdiction and in addition thereto, the appellant had not committed a felony; had committed no offense in the presence of an officer and known to an officer at the time; had committed no offense against the laws of the state of Mississippi.

If arrest was illegal then the appellant had the right to resist same. The granting of the two above-mentioned instructions and the refusal of court to instruct the jury for appellant, that the arrest was illegal constitute reversible error. The court should have granted instruction 19 for the appellant. The same correctly stated the law and error was committed when same was refused, we respectfully submit. Same may be said of the refused instructions numbered 16, 17, 18, 20 and 21, requested by appellant.

It has been a rule of universal acceptance that an officer has no legal right to place under arrest any man without the lawful authority so to do in the form of a warrant unless the party apprehended be charged with the commission of a felony or commits an offense against the law in the presence of the officer.

In this instance the appellant had committed no felony nor had he committed any offense known to the officer in his presence. Not having committed a felony; nor charged with commission of felony or the crime in the presence of officers, the deceased had no authority under the law to shoot appellant or attempt to place him under arrest even though the appellant at the time might have been a deserter from the ranks of the army.

Under authority of Johnson v. Cunningham, 107 Miss. 140, an officer in attempting to arrest a person charged with a misdemeanor and causing death by firing gun at him is liable in damages and the court in no uncertain terms condemns the practice of officers in the promiscuous use of firearms when persons are only charged with misdemeanors.

Here appellant had violated no law of the state of Mississippi and we submit the court was in error when it refused to charge that under the testimony the attempted arrest was illegal. So we submit that in view of the errors complained of,...