Burrage v. State

• Decision Date: 22 April 1912
• Docket Number: 15476
• Citation: 101 Miss. 598,58 So. 217
• Court: Mississippi Supreme Court
• Parties: J. H. BURRAGE v. STATE

58 So. 217

101 Miss. 598

J. H. BURRAGE v. STATE

No. 15476

Supreme Court of Mississippi

April 22, 1912

APPEAL from the circuit court of Madison county, HON.W. A. HENRY Judge.

J. H Burrage was convicted of murder and appeals.

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

Affirmed.

W. H. &amp R. H. Powell, for appellant.

We cannot in this brief or in oral argument, which we desire elaborate all of the errors that we have assigned, twenty-five in number, and will have to trust to the court to give to each assignment, such consideration as may be merited.

Certainly the court erred in not granting the continuance and in not granting a new trial, and in other respects which we will now discuss.

It is an old saying that "it is bad to swap horses in the middle of the stream." That was done for us, and we believe was one of the causes of conviction.

Judge Henry presided a while and Judge Robert Powell presided for a while. We do not believe that this was legal. We told Judge Henry that we would not make any point on this, and we intended to keep our contract, but he magnanimously has released us from that agreement, and requested us, or rather agreed that we should raise this question as error. We insist that this was error and a mistrial should have been entered. Judge Powell, who did not hear the testimony but who was presiding during the argument could not and did not stop the district attorney in commenting upon matters, not in evidence, to the great detriment of defendant, because he did not know what had been adduced in evidence. The jury was locked up two days waiting for Judge Henry to return to court and the trial was suspended and did not resume until Juge Powell ascended the bench on Saturday. The jury was tired out and gave a Saturday night verdict, or rather a Sunday morning verdict hostile to the defendant.

The jury deliberated on Sunday and actually returned the verdict in this case on Sunday and Judge Powell accepted the verdict on Sunday and finally discharged the jury on Sunday, and for this the defendant moved in arrest of judgment as shown by the record which the court overruled, record 377, and we have assigned that as error.

Now, we are aware that in some states, this would be legal, because of the statute law of such state, or the want of such statute.

But in Mississippi, Sunday or rather the Sabbath is made a "dies non" by the statute and only those things can be done on the Sabbath, as are expressly authorized by the statute. For example, by Sec. 143, of the Code, attachment can be executed on Sunday, by Sec. 992, writs of habeas corpus, etc., may be executed on Sunday. By section 1367, druggist may sell medicines on Sunday, but nowhere, in the Code can we find that it is legal for a jury to deliberate on a murder case on Sunday. Nowhere in our Code can we find that a jury can return a verdict on Sunday or that enables a judge to accept such verdict, and finally discharge the jury from the consideration of the case. "Expressio unius est exclusio alterius," I believe is the maxim. We say that this defendant was not convicted on a legal day, in a legal way, and that the motion to arrest judgment should have been sustained.

We do not wish the court to think we have waived any of the errors assigned, because we have not discussed them, for we do not waive any of them, but we have not discussed each one for the reason that this brief is becoming prolix, and wearying to the court.

The court below committed fatal error in allowing the state to peremptorily challenge the juror, T. J. Pitchford, after he had been accepted by the state and presented to defendant and after the defendant had accepted him.

See record where the jury of twelve men, including Pitchford, is tendered to the state for acceptance or rejection, and after the state accepted him as a juror the defendant accepted him. See further examination of Pitchford on pages 74 and 82.

The court after such acceptance, by both the state and defendant, allowed the state to peremptorily challenge him over objection of defendant.

This was fatal error and must alone cause a reversal of this cause.

By Code 1871, Sec. 2761, it was provided that "All peremptory challenges by the state shall be made before the juror is presented to the prisoner."

This section was construed by your honorable court in Stewart v. State, 50 Miss. 587, et seq., wherein the case was reversed for this same error. On page 589 thereof, near the bottom, the court said:

"The peremptory challenge of a juror by the state after he had been presented to the prisoner was in disregard of the positive letter of the statute. The Code, Sec. 2761, enacts that all peremptory challenges by the state shall be made before the juror is presented to the prisoner." And on top of page 590, the court further said: "Hence, the motion for a new trial ought to have been sustained. This result is inevitable. All persons accused of crime are entitled to trial according to the forms, and the letter and the spirit of the law." We say "les ites scriptu est."

This case has not been overruled, modified, or distinguished and was the law in 1874 and has ever been since. This section on this point was re-enacted in the Codes of 180 and 1892, Sec. 1423, and Code 1906, Sec. 1496, and Laws of 1908, Ch. 172, page 187.

All these subsequent enactments of the Code of 1871 were with the full knowledge of the construction by this court in the Stewart case, supra, and it must be conclusively presumed that the legislature was satisfied with such construction, as no change was made in such later enactments.

W. J. Croom, for appellant.

During the trial of this cause after the state had accepted the panel, and the panel had been presented to the appellant, the state over the objection of the appellant, was permitted to peremptorily challenge the juror, Pitchford, and that after Pitchford had been accepted both by the state and the appellant, and mark you this was done by the state peremptorily not by a challenge for cause but by a peremptory challenge, and this I say, was in the very teeth of the statute, Sec. 1496 of the Code, and in the face of Stewart v. State, 50 Miss. 587, and I say that this was fatal error.

During the further progress of this trial, Judge W. A. Henry vacated the bench, and Judge Robert Powell, who had not heard any of the testimony, and knew nothing about the facts in the case, was appointed, and took the bench, and finished the trial of this case, which, I say, was error. That if for any reason Judge Henry, the presiding judge, could not finish this trial, a mistrial should have been entered, and a new trial had. In concluding this trial before Judge Powell, many errors took place which the court could not help, being then presided over by Judge Powell, and he not being in a position to rule on the questions brought before him, because he said that he did not hear the evidence and therefore could not rule.

Ross Collins, attorney-general, for appellee.

As to the error assigned on account of the action of the court for excusing the juror, Pitchford, we submit that it was not error to excuse him, and if error, was not prejudicial to the defendant.

The facts about this juror are: that he qualified on his first examination and the district attorney accepted him, and turned him and the balance of the panel over to the defense. When the defendant's lawyers examined him, it developed that he would not convict any man on the testimony of negroes; thereupon the district attorney proceeded to question the juror further with reference to his aversion to...