Haley v. State
| Citation | 63 So. 670,106 Miss. 358 |
| Court | Mississippi Supreme Court |
| Decision Date | 22 December 1913 |
| Parties | OWEN HALEY v. STATE |
October 1913
APPEAL from the circuit court of Madison county, HON. W. A. HENRY Judge.
Owen Haley was convicted of carrying concealed weapons and appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Powell & Thompson, for appellant.
The first question that meets us on the very threshold of this case is this: Did the lower court have the right, without our consent, to consolidate two separate indictments, each for a different offense, and try them on one trial with the same evidence and with the same instructions for both and before the same jury at the same time. Our contention is that the court did not have this right. In the first place we find no statute authorizing such a proceeding. In the next place we say that it was highly prejudicial to the defendant to have thus commingled the two cases in the one trial. It deprived the defendant of a portion of his peremptory challenge under the statute. It allowed offenses to be brought out in one trial which would not have been permitted to have been introduced had the other case alone been on trial and it damned him with whatever was prejudicial to him in both cases. In this case for instance under the charge of being drunk and disorderly in a public place, although he was acquitted of the charge, the testimony was still before the jury that he was drunk and making threats, which would not have been permitted had not this charge been combined with the charge of carrying concealed weapons.
In the next place the instructions were so mixed that the average juror could not tell to which particular charge a particular instruction applied; for instance the first instruction given for the state told the jury that if the defendant was drunk in the presence of two or more persons then it was their sworn duty to find the defendant guilty as charged in the indictment. Now as there were two indictments the average juror would not know which indictment was meant to be covered by this charge.
We have been unable to find but one case directly covering this proposition of joining two separate indictments in the same trial and it was condemned in that case; see Commonwealth v. Bickum, 153 Mass. 386.
We recognize, of course, that the time of the court is valuable and that its speedy administration of justice is desirable but we also recognize the further fact that over and beyond these considerations it is the paramount duty of the court to give even the humblest defendant a fair and impartial trial. If two separate and distinct indictments can be tried at the same time, why not three or four, or a dozen, and if one defendant can be tried under two separate indictments against him at the same time, why, in the interest of the economy of time, not try cases in which several parties are charged under several indictments of different offenses at the same time, or why not try the whole criminal docket at one fell swoop.
There is no doubt in this case but what indictment number 6534 and 6535 were tried in this case at the same time and by the same jury, and this is certified to in the record on page 54 by the clerk of the court.
Our next contention is that the evidence in this case is without dispute in favor of the defendant. The defendant testified that he had been told that he had been threatened by one Frank Wheeler about two or three weeks before this carrying of concealed weapons and that he had apprehended that he would receive a serious attack from one Frank Wheeler; and two other witnesses testified that they heard Frank Wheeler make the threats and that they communicated them to the defendant before the time of the commission of this offense and there is not a line of testimony, or a circumstance, by anybody to the contrary.
Now, while the court, as we understand, accepts the verdict of the jury ordinarily as conclusive on matters of fact, still where there is absolutely no testimony to contradict the testimony of defendant and his witnesses and they make out a perfect defense, the court should not hesitate to reverse for that reason.
The third ground upon which we claim that this case should be reversed is the granting of the second instruction for the state which is as follows:
"Unless you further believe from the evidence that the defendant had been threatened and had good and sufficient reason to apprehend a serious attack from Frank Wheeler and that he did then and there so apprehend an attack from Frank Wheeler."
Now our contention is that when the court, by this instruction told the jury that before they could acquit the defendant they must believe that the defendant at the time he carried the concealed weapon, for which he was indicted, did then and there apprehend an attack from Frank Wheeler, it was reversible error.
The court will readily see how prejudicial this was to the defendant. The testimony was undisputed that defendant had left his home in Leake county and had gone some twelve or thirteen miles to a supper and that consequently for the time being, that is while at the supper, and while he was carrying the weapon, being so far away from Frank Wheeler's residence, that he should not then and there have apprehended an attack and this circumstance was wielded with telling effect by the district attorney.
This court in the recent case of Harvey v. State, recorded in 59 So. on page 841, says:
And yet this instruction for the defendant says that unless at the time he is charged with carrying concealed weapons, to wit, at the supper at Millville, he then and there apprehended an attack, he is guilty as charged. In other words, that unless the jury believe that a man who was twelve or thirteen miles away from home in a crowd of his friends under such circumstances would believe that, with such surroundings, he would then and there be attacked, then he would be guilty as charged. Under the decision just quoted this was not the law and of course was highly prejudicial to the defendant. For all of which reasons we believe this case should be reversed and remanded.
Frank Johnston, assistant attorney-general, for the state.
It is objected now in this court that it was reversible error for the court to have tried the two indictments at the same time and before the same jury. The answer that I make to this proposition is, that it ought to have been made in the court below, if there was anything in the objection; and that it was made for the first time by the assignment of error in this court. An objection cannot be made for the first time in this court. It is entirely unnecessary to cite authorities in regard to this rule of appellate practice, that only exceptions to the action of the court below will be considered by this court on appeal. I therefore respectfully submit to the court, that this objection is not presented by the record for consideration on this appeal. If, however, this point was presented by the record in the case, I seriously question its soundness as a legal proposition. It is obvious in this case, that the disorderly conduct coupled with the display of the concealed weapon, and the carrying of the concealed weapon, are involved in the same transaction, and depend substantially upon the same state of facts. It is precisely, therefore, in its nature and character the same as two counts in one indictment, involving the same transaction and depending upon the same state of facts.
In the case of Commonwealth v. Bickman, 153 Mass. 386 there were two indictments against the same defendant: One for maintaining a certain tenement which was used for the illegal sale of liquor, while the second indictment contained a charge of selling illegally at that tenement house. The Massachusetts court held that it was not proper for the...
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