Gus Husbands v. State

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, C. J.
• Citation: Gus Husbands v. State, 62 So. 418, 105 Miss. 548 (Miss. 1913)
• Decision Date: 07 July 1913
• Parties: GUS HUSBANDS v. STATE

62 So. 418

105 Miss. 548

GUS HUSBANDS v. STATE

Supreme Court of Mississippi

July 7, 1913

March 1913

APPEAL from the circuit court of Jasper county, HON. D.C. ENOCHS Special Judge.

Gus Husbands was convicted of petty larceny and appeals.

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

Affirmed.

A. A Hammond, for appellant.

I do not care to burden the court with a lengthy argument in this cause, because I believe that the entire proceedings before the circuit court were void, and I have no fear that this court will disagree with me.

First. I will treat the affidavit, or the instrument called an affidavit in the court below. By reading appellant's motion to quash the court will readily see that appellant defendant below, had received information that the instrument had not been subscribed to before the justice of the peace; this alone will not invalidate the instrument, but from the motion it will be seen that we set up that it had not been sworn too; from the testimony of L. T. Campbell, who was the prosecuting witness in the justice court and the circuit court, the affidavit, so-called, was not sworn to; no oath was administered nor taken; Campbell tells the court this is true on his cross-examination, and by the redirect examination by the state, it is conceded that no oath was administered, and the instrument was not affirmed too by the witness Campbell.

The court will find that the state rested its case upon the intention of Campbell and the justice of the peace, and upon the willingness of Campbell to make oath to the allegations in the circuit court. I cite with confidence the case of Carlile v. Gunn, 68 Miss. 243, also Brame & Alexander's Mississippi Digest, page 11 under heading Affidavits; in this case an attachment suit was attempted to be begun in a justice court, and upon hearing in the circuit court it developed that the oath was not administered by the justice; it was shown that the parties intended to make oath to the facts set up in the affidavit but the oath was in fact not administered. In the opinion in that case the learned justice said that the affidavit was in fact not an affidavit at all, that the state could not maintain a prosecution for perjury upon it; that the oath not having been administered, it was nothing more than a statement of facts, reduced to writing and subscribed too by the maker thereof. Now, I submit that there are a number of definitions of the word affidavit as given by our different text-writers, but in all of them the oath must be administered; none of the writers has yet said that the instrument is sufficient, if not sworn too, and while I submit that there may be other cases coming from our own court deciding the same point, my limited library will not permit me to search for them; too, the Carlile case being so near a blanket case, I submit that the court will be governed by the opinion in that case.

The Carlile case was a civil action, and if the court held that by permitting' the judgment of the jury to stand the appellant would be deprived of his property without due process of law....