Burgess v. State

• Decision Date: 23 February 1903
• Citation: 81 Miss. 482,33 So. 499
• Court: Mississippi Supreme Court
• Parties: JAMES A. BURGES v. STATE OF MISSISSIPPI

33 So. 499

81 Miss. 482

JAMES A. BURGES v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 23, 1903

FROM the circuit court of Copiah county. HON. ROBERT POWELL Judge.

Burges appellant, was indicted, tried and convicted in the court below of uttering counterfeit coin, and appealed therefrom to the supreme court.

The indictment contained two counts. The first count charged appellant with making counterfeit coin. The second count charged him with uttering counterfeit coin. After the jury had been empaneled, the defendant moved the court to require the state to elect on which count of the indictment it would proceed. This motion was overruled. The evidence was then all introduced, both for the state and for the defense, and it tended to prove the crime charged in both counts in the indictment. The state then, the evidence having all been heard, elected to try appellant on the count charging him with uttering counterfeit coin.

Reversed and remanded.

H. J Wilson, for appellant.

There are two counts in the indictment in this case. The first charges the defendant with making a counterfeit coin; the second with passing a counterfeit coin. Under the first count it was admissible to show the possession of tools or instruments used in counterfeiting, or that could be used in making or altering coin, but this evidence would have been inadmissible on the second count. The possession of an electroplating machine and the fact that defendant had been engaged for some weeks in plating jewelry, were admissible on the charge of making the coin, but irrelevant and inadmissible on the charge of passing the coin, and on the second count could operate only in prejudicing the minds of the jury against the defendant. It was unjust to the defendant to allow the state to introduce all testimony that was admissible on both counts before requiring the state to elect upon which of the counts it would proceed.

William Williams, assistant attorney-general, for appellee.

The refusal of the trial court to require the state to elect upon which of two or more counts in an indictment it will proceed will not ordinarily be ground for reversal, this being a matter resting within the sound discretion of the court. Hemingway v. State, 68 Miss. 371; Teat v. State, 53 Ib., 439; Cannon v. State, 75 Ib., 364; Gates v. State, 71 Miss. 874; 1 Bishop New Crim. Proc., sec. 454, et seq.; George v. State, 39 Miss. 570.

It is respectfully submitted that in no case will a reversal be ordered unless it appears that the appellant was prejudiced by the action of the trial court. The testimony complained of in the case at bar was competent on the trial of either count in the indictment, and on the trial of the elected count for the purpose of showing that accused knew the coin was counterfeit. The fact that this testimony would tend to prove another crime ought not to be complained of by him.

OPINION

WHITFIELD, C. J.

Looking backward through the whole case, we are constrained to hold the court erred in not compelling the district attorney to elect on which count he would proceed, before any evidence was introduced for the state. If, looking back, we could see no prejudice resulting to the defendant, we would not reverse, although it is bad practice not to compel election where distinct felonies are charged in two distinct counts of the indictment. Woods, C. J., speaking for the court in Cannon v. State, 75 Miss. 364 (22 So. 827) sets out that doctrine. In that case the motion was held to have been made too late, because not made until all the evidence had been introduced, but the court observed, "If the motion had been made in good time, we must suppose the court below would have required the state to elect." This, too, was in a case...