Davenport v. State

• Citation: 83 So. 738,121 Miss. 548
• Decision Date: 08 March 1920
• Docket Number: 21100
• Court: Mississippi Supreme Court
• Parties: DAVENPORT v. STATE

83 So. 738

121 Miss. 548

DAVENPORT v. STATE

No. 21100

Supreme Court of Mississippi

March 8, 1920

March 1920

1. CRIMINAL LAW. Competency of evidence not objected to will not be reviewed.

The supreme court will not pass upon the competency of evidence introduced in the lower court without objection.

2. CRIMINAL LAW. Improper instructions shown to have influenced verdict of jury,

Testimony of jurors on motion for new trial, not objected to, is held by the court in this case to have influenced the verdict of the jury.

3. CRIMINAL LAW. Giving of unrequested instructions.

Under section 793, Code 1906 (Hemingway's Code, section 577) so providing, the trial judge is forbidden to give an instruction not requested by either party.

4. CRIMINAL LAW. Giving of instruction after argument Has begun. It is error for the trial judge to give an instruction after the argument to the jury has begun.

HON. C. P. LONG, Judge.

APPEAL from the circuit court of Tishomingo county, HON. C. P. LONG, judge.

N. C. Davenport was convicted of unlawfully selling intoxicating liquors and appeals.

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

Judgment reversed, and case remanded.

Bennett & Clark, for appellant.

Section 793, Code of 1906, says the Judge in any cause, civil or criminal, shall not sum up or comment on the testimony or charge the jury as to the weight of evidence, but at the request of either party, he shall instruct the jury upon the principles of law applicable to the case.

In the case of Montgomery v. The State, 85 Miss. 330, 38 So. 335, the supreme court in passing on, and construing said section of the code referred to and the facts of which were as follows: The record history of this instruction shows that it was had of the court by counsel for the state during the argument for the defendant, whose counsel were in entire ignorance of it, and that it was for the first time, produced by the counsel for the state in his closing argument to the jury, telling them that he had gotten instructions from the court to answer the argument of counsel for the defense, who immediately objected and excepted to this practice. The court remained, silent. It is true that the state's attorney then said "counsel may answer the instruction now."

This proceeding was not good practice, and not cured by the remark of the state's attorney, action on which might have required the re-shaping of the whole argument. The court may grant instructions any time before the jury retires, but not secretly. Other counsel interested should know of it, even though they have to be stopped in arguing.

The court says further in the opinion that the correct practice under our system is for the court to pass on all instructions asked on both sides before the argument of the jury begins. The court in its opinion says further that a court should so deport itself as, that no juror or bystander can surmise its view of the facts. It is an unbiased jury alone which should pass on the facts, and this on the theory of the law, in Mississippi, is designed for the protection of innocence which is presumed of all men, until disproved in the legal mode on a fair and impartial administration of equal and exact justice.

In the case of James v. The State, 63 So. 669, the supreme court says: "Under the system of judicial procedure in Mississippi, it is not in the province of the judge to give instructions to the jury, unless one of the parties request him to do so and present to him in writing, the desired instructions. He is not permitted to instruct the jury at his own instance." In the case of Johnson v. The State, 63 So. 338, the court lays down the same proposition as laid down in the case of James v. The State, above cited.

In the case of Dixon v. State, 64 So. 468, the court says: "No instruction was asked by either the state or the defendant requesting the court to define the crime of murder, and therefore, under section 793, of the Code, it was without authority to so instruct," and the court further says, in this opinion, that "if there is any merit in appellant's third objection, it would be that section 793, of the Code should be repealed."

The following cases, hold that the judge has no authority of his own motion and without request from either party to instruct the jury, and that if he does so, it is reversible error, and violative of the provisions of section 793 of the Code of 1906. Pringle v. State, 108 Miss. 802; Watkins v. State, 60 Miss. 323; Boykin v. State, 86 Miss. 481.

But without these authorities above cited relative to the power of a judge to instruct the jury, the said section 793 of the Code speaks for itself. And that is, at the request of either party, he shall instruct the jury upon the principles of law, applicable to the case, and that all instructions asked by either party must be in writing, and all alterations and modifications of instructions given by the court, or refused shall be in writing. Showing that the court can only modify or alter instructions as requested. The court's explanation as to his reason for giving the instruction does not cure the defect or change the law as laid down. And even if counsel for the defendant had argued to the jury as set forth in the court's reasons for giving that instruction, that does not give the court the right to do what he did in this case.

The district attorney is the party who represents the state and it is his duty to request instructions for the state and should the district attorney even fail to do his, that doesn't give the court the right and the power to instruct the jury.

We respectfully submit, that if this case is affirmed on the record above that this court will reverse all its former holdings and absolutely repeal section 793 of the Code of 1906.

We respectfully submit that this case should be reversed and remanded.

T. M. Currie, Assistant Attorney-General for the state.

The appellant was convicted by the jury and after his conviction some of the jurors who tried the case were examined on a motion to set the verdict aside and have a new trial, and testified that they did not know whether they would have voted for a verdict of guilty without the instruction, saying that it was doubtful if they would have done so.

The action of the court in granting this instruction sua sponte is the vital error assigned.

The state regrets that it is unable to bring itself to the conclusion that this action of the court was not error. The matter of the granting of instructions seems to be absolutely fixed in our statute. The record and the case are respectfully submitted.

IN BANC

OPINION

ETHRIDGE, J.

The appellant was indicted in a justice of the peace court for unlawfully selling vinous, malt, spirituous, alcoholic, and intoxicating liquors. The date of the offense was charged in the affidavit to be the 8th day of February, 1919. There was a conviction in the justice court and an appeal taken to the circuit court, where appellant was again tried and convicted and sentenced to pay a fine of one hundred dollars and serve sixty days in jail, fifty dollars of the fine to be suspended during good behavior. During the first part of the trial the state adhered to one sale, but during the course of the trial introduced evidence of other sales. There was only one witness to testify to the sale, and this witness got confused as to the dates, and testified to two different dates. The district attorney contented himself with one charge, which read:

"The court charges the jury for the state that if you believe from the evidence beyond a reasonable doubt that the defendant sold Bud Estes liquor as charged in the affidavit, then you will find him guilty as charged."

The defendant asked two charges, reading as...