Ellerbe v. State

• Decision Date: 17 January 1898
• Court: Mississippi Supreme Court
• Parties: J. H. ELLERBE v. STATE OF MISSISSIPPI

22 So. 950

75 Miss. 522

J. H. ELLERBE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 17, 1898

December 1897

FROM the circuit court of Lauderdale county HON. G. B. HUDDLESTON Judge.

The opinion states the case.

Reversed and remanded.

McIntosh & McIntosh, F. V. Brahan and Etheridge & McBeath, for the appellant.

The testimony shows conclusively "such absence from the room, on the part of the judge, as constituted a temporary relinquishment of the control of the court and of the conduct of the trial, " which this court, in the case of Turbeville v. State, 56 Miss. 793, said would necessitate a reversal. In that case the judge, during the argument of the counsel to the jury, left the bench and stepped into a room immediately adjoining and in the rear of the bench, and separated from it only by the thickness of the wall, through which a door opened. He placed a member of the bar on the bench, with instructions to call and notify him if needed. He remained in this room, absent from the bench, and distant from it, as the bill of exceptions show, five or six feet, during the greater part of the time consumed in the several addresses to the jury. It does not appear whether the door which opened from the bench or rostrum into the room [styled the judge's retiring room] was closed or open while the judge was thus absent.

In the case, supra, the court, continuing, said: "In civil cases or in prosecutions for misdemeanors he may give place to another by consent, and, if he does so without objection in advance, consent will perhaps be presumed; but in the prosecutions for felonies, no consent can be given, and if given it will not be binding on the accused."

It is true that the testimony as shown in the bill of exceptions taken upon the motion for a new trial discloses the fact that the court, leaving the bench and the courtroom, called the district attorney and one of the counsel for the defendant to the bench, and stated that his purpose was to leave the courthouse for awhile, provided they made no objection, or consented, and that they did consent. As a matter of course neither the learned judge, the district attorney nor the counsel for the defendant was at the time mindful of the ruling of this court in the Turbeville case, or at the time thought about the law in such cases, or that such scene as did occur would transpire in the absence of the court, otherwise the consent of the district attorney and defendant's counsel would not have been asked or given.

It is true that § 920, code 1892, provides for the trial of causes by a member of the bar on agreement of parties, when the judge is disqualified to hear the same, but the judge was not disqualified in this case, hence, the state cannot take refuge behind that statute. But, even in the state of case provided for by § 920, code of 1892, the member of the bar agreed on and called to the bench must hear and determine the whole case, which was not done here.

Again, a member of the bar presiding by agreement, in case of a disqualification of the judge, is not the judge of the court, even under § 920 of the code. All his acts are ministerial rather than judicial, more like a master in chancery than anything else. His authority is limited to the hearing of the cause agreed to be submitted to him. He could not, we submit, fine for contempt of court, or do anything or exercise any of the powers appertaining to judges generally, except what was connected with the case he was trying. Grenstead v. Buckley, 32 Miss. 148. Hence, even under the provisions of § 920, the law does not contemplate the relinquishment by the judge of his control and management of the court. It directs and provides merely for his retiring from the bench, but not from the courtroom and the delegation of his judicial power and authority to another. Davies v. Wilson, 65 Ill. 525; Brownlee v. Hewett, 1 Mo. App.; State v. Cludies, Ib., 551.

Wiley N. Nash, attorney-general, for the state.

The record shows that the judge was absent with the consent of the accused, and it is equally clear that in the temporary absence he had not relinquished control of the court. The obiter dicta in Turbeville v. State, 56 Miss. 798, have no more weight as authority than other expressions of that class, and should be disregarded. The point is, can a circuit judge, in the progress of a criminal trial, many of which must sorely tax his physical endurance, vacate the bench for a few moments, and call some member of the bar to occupy his seat during this absence, when the trial has reached a stage when no ruling by the court will probably he necessary, the accused consenting to such action? A decision to the contrary would be dangerous doctrine. The case of Peter v. State, 6 How. [Miss.] , 326, is not decisive of the question here presented.

John W. Fewell, on the same side.

The constitution of 1890, section 165, by an inference equal to positive enactment, authorizes the attorneys engaged "in any case" to agree upon a member of the bar to preside in the place of the judge. I would remark in reference to the Turbeville case, which is so much relied on: First, that the constitution in force at the time that case was tried contained no provision authorizing the attorneys engaged in a case to select a member of the bar to preside. Second, that the counsel of the state had, as was alleged, in his concluding address to the jury, made statements which were improper and well calculated to injure the defendant. Third, that the point was made immediately upon the return of the judge to the bench, and exception taken then and there to the ruling of the court on this objection. In these important particulars the Turbeville case differs from this case. And, fourth, this court, while stating that if the absence of the judge were established it would not hesitate to reverse, decided that there was no real absence and declined to reverse, and yet there was really just as complete and substantial an absence in that case as in this. The court will not measure the number of feet the judge was distant from the bench in order to find a difference between this case and that of Turbeville, nor differentiate the cases as to the conclusion to be reached, because the judge went out of the courtroom to take a nap in the Turbeville case and went out of the courtroom on an errand of mercy in this case. The remarks of the court in the Turbeville case, whilst highly instructive, and of benefit to the circuit judges, and whilst entitled to the greatest respect because emanating from a distinguished judge, were, nevertheless, dicta, in so far as they set forth what the court would do in a certain state of case not made by the record under consideration.

No objection was made in this cause to the court's proceeding with the trial of the case; no point was made when the judge returned to the bench on his having been absent; no mistrial was claimed. Could the counsel of the defendant go on and experiment with the jury, lie back and make no point or objection, and then, when their experiment failed, insist upon a new trial--another experiment? If the defendant was injured or aggrieved by the judge's absence, ought not he, at once, upon the judge's return, to have insisted that there was a mistrial? The contention is that ipso facto upon the judge's leaving the bench the trial ended. Ended how? Why, if the counsel be right in their contention here, the defendant, but for section twenty-two of the constitution, stood acquitted; he was in jeopardy; his consent was void; and, when the judge stepped out on his mission of charity, the defendant became a free man, just as if the court had, without any legal cause, adjourned the term. What harm was done to the defendant? in what respect was he deprived of a fair trial, as secured to him by the constitution? This question, I submit, contains the real point, the meat of the controversy. The only effect of what transpired in the judge's absence, was the placing before the jury by defendant's counsel of a fact which the court had properly held inadmissible, which fact remained with the jury and possibly caused them to make the verdict such as to require a sentence to the penitentiary for life instead of the death penalty.

Argued orally by J. R. McIntosh, for the appellant, and by Jno. W. Fewell and W. N. Nash, attorney-general, for the appellee.

OPINION

WHITFIELD, J.

The appellant was tried for murder, convicted and sentenced to imprisonment in the penitentiary for life. During the trial whilst one of the counsel for the appellant was making his argument to the jury, the circuit judge left the bench, calling Mr. Bozeman, a member of the bar, to preside in his absence, with the consent of part of the counsel for the state and the defendant, and then left the courthouse. During his absence, a heated, excited altercation occurred between one of the counsel for the state, Judge Fewell, and one of the counsel for the defendant, Mr. Ethridge, then addressing the jury. What occurred, as developed by the testimony on the motion for a new trial, was this, says one of the witnesses: "Mr. Ethridge said in his argument that Mr. Hoffer had stated to W. W. Henry, a member of this bar, that he, Hoffer, was a witness to the tragedy. He then discussed the failure of the state to introduce Mr. Henry, and he further discussed and criticized the state for objecting to the introduction of Mr. Henry as a witness on the part of the defense. At this point he was interrupted by Judge Fewell, of counsel for the state, who denounced Mr. Ethridge's argument as being outrageous. There was a clash of words between Mr. Ethridge and Mr. Fewell. But finally Mr. Ethridge said, ' I will take it back.' All or a part of it, I am not sure...