Gilbert v. State

• Decision Date: 07 January 1901
• Citation: 29 So. 477,78 Miss. 300
• Court: Mississippi Supreme Court
• Parties: EDWARD GILBERT v. STATE OF MISSISSIPPI

29 So. 477

78 Miss. 300

EDWARD GILBERT v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 7, 1901

FROM the circuit court of Tunica county. HON. FRANK E. LARKIN Judge.

Edward Gilbert, the appellant, was indicted for the murder of one Sandy Neill, was tried and convicted, in the court below, of manslaughter, and sentenced to the penitentiary for a term of ten years, from which conviction and sentence he appealed to the supreme court. There was a preliminary investigation of the case before a justice of the peace, in which William Bates, Coleman Joiner, and William Hunt were sworn and testified as witnesses, and their testimony was reduced to writing by the presiding magistrate, who duly certified thereto and returned it for the use of the grand jury.

Upon the trial on the indictment in the circuit court, the persons above named, Bates, Joiner and Hunt, were introduced as witnesses for the state, and testified as such. After the state had rested the case, the defendant called the justice of the peace before whom the preliminary trial was had, one H. J. Irvine, and caused him, as a witness, to identify the record of the testimony of said state witnesses, and then offered in evidence, presumably to contradict the testimony of said witnesses as delivered in the circuit court, the written statement, certified by the justice of the peace, of what they had sworn on the preliminary trial. The district attorney at some length, over defendant's objection cross-examined the justice of the peace (Irvine) with the purpose, as inferred from the cross-questions propounded, of showing that he did not reduce to writing everything to which the witnesses had testified before him.

After the jury had retired to consider of their verdict, and after deliberating for about one hour, to quote from the record "They returned into open court, and then and there Thomas Hosken, a member of said jury, asked the court the following question: 'We wish to have some further instructions. Have we the right to convict the defendant of manslaughter?' And the court answered orally of its own motion, without request from the district attorney or the defendant or his 'It is within your power to do so.'" To said oral instruction or statement by the judge to the jury, the defendant duly excepted.

The first and fourth assignments of error, which the court sustained, are as follows:

"1. The court below erred in allowing the district attorney, on the trial of the cause, to cross-examine the witness, H. J Irvine, justice of the peace, in reference to the taking down of the testimony in writing, heard before him on the preliminary trial of the appellant, and overruling appellant's objections to such questions."

"4. The court below erred in giving oral instruction to the jury after they had retired to consider of their verdict, and which instruction was given by the court of its own motion, and not at the request of either the district attorney or of the defendant or his counsel."

Reversed and remanded.

COUNSEL:

F. A. Montgomery, Jr., for appellant.

It was manifest error for the court below to allow the district attorney to cross-examine the witness, Irvine, touching the evidence introduced before him on the examining and committal trial. The evidence was written...