Hannah v. State

• Decision Date: 14 September 1976
• Docket Number: No. 49035,49035
• Citation: 336 So.2d 1317
• Parties: Bill HANNAH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1317

336 So.2d 1317

Bill HANNAH v. STATE of Mississippi.

No. 49035.

Supreme Court of Mississippi.

Sept. 14, 1976.

Rehearing Denied Oct. 5, 1976.

Dannye L. Hunter, Jerry L. Bustin, Forest, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, ROBERTSON and BROOM, JJ.

PATTERSON, Presiding Justice, for the Court:

Bill Hannah, a Justice of the Peace of Scott County, was indicted for converting $8,823.50, the property of Scott County, in his possession by virtue of his office, to his own use, contrary to Mississippi Code Annotated section 97-11-25 (1972). He was convicted and sentenced to seven years in the penitentiary, with four years suspended, and two years on probation. He appeals and assigns thirty-one points for reversal.

The first is that the trial court erred in overruling the demurrer to the indictment. The demurrer's theory is that the indictment was brought under Section 91-11-25 (a felony) entitled 'Embezzlement-officers, trustees and public employees converting property to own use,' a general statute stating offenses relating to public officials, rather than Section 9-11-19 (a misdemeanor) directed to the duties of justices of the peace in accounting for fines and penalties. It is urged the two statutes apply to the same subject matter and because Section 9-11-19 specifically refers to justices of the peace, it prevails over Section 97-11-25, the statute relating to public officers generally.

Section 9-11-19 creates and defines the legal obligation of each justice of the peace to account for, report, and to pay the fines and penalties received into the county treasury. Section 97-11-25 speaks to the unlawful conversion of monies or property which comes into the hands of a public officer by virtue of his office. The first is directed to the duties of a justice of the peace, its violation being a misfeasance in office, a misdemeanor. The latter is not directed to duties of office, but to the wrongful and unlawful conversion of public funds to personal use by a state officer.

While it is true that Section 97-11-25 applies to public officials generally and that Section 9-11-19 refers specifically to the duties of a justice of the peace, there nevertheless remain substantive differences between the two-violation of the method of performing a duty on the one hand as opposed to the unlawful conversion of public funds on the other-precluding control of the general statute by the more specific one, considering their different subjects. Bence v. State, 240 So.2d 630 (Miss.1970); McCaffrey's Food Market, Inc. v. Mississippi Milk Com'n., 227 So.2d 459 (Miss.1969); and Sanders v. State, 141 Miss. 289, 105 So. 523 (1925). We conclude that the court properly overruled the demurrer to the indictment.

The next argument is that the trial court erred in not quashing the indictment. Hannah asserts he was immune from the prosecution because the indictment was based upon personal records unlawfully taken from him and because he testified before the grand jury that returned the writ. We are of the opinion the motion to quash was correctly overruled because the evidence discloses the records were not presented to the grand jury as contended and were therefore not the basis of its indictment. Moreover, we adhere to the rule that 'the law does not permit the court to go behind an indictment to inquire into evidence considered by the Grand Jury to determine whether it was in whole or part competent and legal.' Davis v. State, 255 So.2d 916 (Miss.1971); State v. Matthews, 218 So.2d 743 (Miss.1969).

On March 4, 1974, Hannah appeared before the grand jury and evidently responded to questions by it concerning the duties of his office. It is uncontradicted that the vote to return the indictment was on the afternoon of March 3, the day prior to his grand jury appearance. Since this is true, his testimony on March 4 was not used against him in violation of constitutional prohibitions. We conclude the motion to quash the indictment on this contention was properly overruled.

Hannah argues under the foregoing point that the district and county attorneys were present when the grand jury voted to return the indictment against him and that he was prejudiced thereby. This contention points out a repeating occurrence provoking justified criticism of our judicial system since it suggests undue influence and unfairness by the presence of prosecuting attorneys, advocates of the state, when critical votes are made affecting the well-being and liberty of those not similarly represented. Once again, we concur with that stated in Grantham v. State, 214 Miss. 756, 59 So.2d 344 (1952), as follows:

While this Court in prior decisions has said that it is the better practice for the district attorney to absent himself from the grand jury room while the grand jurors are voting on an indictment, the Court has nevertheless held that the presence of the district attorney at such time in the grand jury room is only an irregularity and constitutes no reversible error in the absence of proof of injury or prejudice resulting therefrom to the defendant. . . . (214 Miss. at 759, 59 So.2d at 346)

We conclude the irregularity does not constitute reversible error. We nevertheless feel constrained to state that it is not the better practice and policy requires that it not be done. The difficulty of an indictee proving prejudice emanating from the secrecies of a grand jury room makes this so. The suspicion of undue influence should be avoided by prosecuting attorneys removing themselves from the grand jurors' presence when votes for indictment are cast.

It is urged that error occurred by the court's suggesting to the state's attorney that an objection should be made to the testimony being offered. The sheriff was being interrogated in support of defendant's motion to quash the indictment because and grand jury's actions were not secret. He was questioned concerning the apparent suicide of another justice of the peace who had also been indicted and particularly whether he had knowledge of a suicide note that might have been left by the decedent. The court inquired as to the relevancy of the testimony of which defense counsel replied that the testimony would substantiate the fact that the grand jury's actions were not secret.

The court then inquired of the district attorney whether he had objection to the question and upon receiving an affirmative reply sustained the objection because it had no materiality. We are of the opinion the court's query was not a suggestion to object, but rather was an inquiry only, and moreover, a valid one because it does appear that the question was irrelevant to the issue. A trial judge has the responsibility, within judicial discretion, of confining the testimony during trial to the issues before it. We observe no prejudice to the appellant from the court's inquiry. Indeed, we discern no proffer of testimony to preserve the point had the witness been permitted to testify. Jones v. State, 306 So.2d 57 (Miss.1975).

It is suggested by the next two points that the court erred in permitting an amendment to the indictment and while doing so, compounded the error by commenting upon the evidence. The comment occurred at the time the district attorney moved the court to amend the indictment by changing the amount allegedly embezzled from $8,823.50 to $1,176.50. When defense counsel was asked whether he had any objection, the following response was made:

If it please the Court, the Defendant would object to the Indictment being amended. The Defendant has the right and is prepared to answer the charges and the evidence presented to the Grand Jury, and this Court has a right to see it. There have been volumes of publicity about this case, and we have spent hours and hours preparing to defend the indictment served against him, and at this time if the State can't prove its case, it ought to be dismissed.

The Court responded:

The objection is over-ruled. The amendment is allowed. We could stay here a month. The defendant can't complain about reducing the amount to $1,176.50. Draw an Order and let the Order be entered immediately.

Thereupon counsel requested the jury to retire and when it did so, objected to the court's comment. He cites Mississippi Code Annotated section 99-17-35 (1972) in part as follows: 'The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence, . . .' and numerous cases of this Court condemning comment upon the evidence by a trial judge, an example of which is Stallworth v. State, 310 So.2d 900 (Miss.1975).

There can be no doubt the statute and cases enjoin comment by a judge upon the evidence because the very position of a judge during trial makes each comment unusually susceptible of influencing a juror or the jury. The question presently reduces itself to whether or not the judge's statement was a comment upon the evidence. We think the remarks of the judge were responsive to the terms of the objection that there had been volumes of publicity about the case and 'hours and hours' of preparation to defend against the indictment and therefore the comment was evoked by the objection. Moreover, a fair reading of the colloquy, in our opinion, does not portray comment likely to prejudice the jury against Hannah, but is rather an explanation by the court for its ruling upon the amendment. This is permissible. Ratliff v. State, 313 So.2d 386 (Miss.1975); Bumpus v. State, 166 Miss. 276, 144 So. 897 (1932).

There follows argument that the amendment was improper. We are not persuaded becuase the amendment was of form and not substance. It is authorized by Mississippi Code Annotated section 99-17-13 (1972). And see Sanders v. State, 313 So.2d 398 (Miss.1975).

The probability that Mississippi Code Annotated section 13-5-1 (competent jurors), et seq. (1972) will permit a...