Harris v. State

• Decision Date: 10 November 1930
• Docket Number: 28936
• Citation: 158 Miss. 439,130 So. 697
• Court: Mississippi Supreme Court
• Parties: HARRIS v. STATE

130 So. 697

158 Miss. 439

HARRIS v. STATE

No. 28936

Supreme Court of Mississippi

November 10, 1930

Division A

1. CRIMINAL LAW. Demurrer to plea of former jeopardy on ground that supreme court had held that instruction directing acquittal should have been given at former trial held properly sustained.

Constitution 1890, section 22, provides that there must be an actual acquittal or conviction on the merits to bar another prosecution.

2. CRIMINAL LAW. Court's suspending trial for manslaughter to following morning at district attorney's request held not prejudicial to defendant.

During progress of trial, district attorney discovered that he could not, under rulings of court, prove death by employees of hospital whom he had summoned for that purpose, whereupon court, at his request, suspended trial from 11:15 A. M. to 9 o'clock the next morning, at which time trial was resumed.

3. CRIMINAL LAW.

In manslaughter prosecution, permitting nurses to identify entries made in deceased's record as patient in hospital not introduced in evidence, held harmless.

4 HOMICIDE.

Court properly confined testimony regarding defendant's reputation for peace to proof thereof before commission of crime charged.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, Second district, HON. W. A. ALCORN, JR., Judge.

Robert Harris was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

J. M. Talbot, of Clarksdale, for appellant.

In a criminal case where defendant requests a directed verdict which is overruled by the trial court, but on appeal the supreme court holds that a verdict should have been directed for the defendant by the trial court, the defendant has been placed in jeopardy and on a second trial a plea of former jeopardy should be sustained.

Harris v. State, 124 So. 493; Washington v. State, 124 So. 480; 1 Bishop on Criminal Law (9 Ed.), p. 771, pars. 1044-45-46-47; State v. Moor, 1 Walker 134; Cherry v. State, 103 Miss. 225, 60 So. 138; Smithey v. State, 93 Miss. 257, 46 So. 410; Finch v. State, 53 Miss. 363; Teat v. State, 53 Miss. 439; Whitten v. State, 61 Miss. 717; Hill v. State, 120 So. 817; Jones v. State, 144 Miss. 52, 109 So. 265.

We concede that the action of the court in suspending the trial of this case at eleven o'clock in the forenoon of the second day of the trial until nine o'clock the next morning was a matter of discretion with the court, and that this court will not disturb the action of the trial court unless it appears that the discretionary powers were abused. We earnestly submit to the court that this action of the trial court was a gross abuse of such powers.

Section 26 of the Constitution of 1890; Nixon v. State, 2 S. & M. (10 Miss.) 497; Long v. State, 52 Miss. 23; Walton v. State, 87 Miss. 296, 39 So. 689; Knox v. State, 97 Miss. 523, 52 So. 695; Walker v. State, 129 Miss. 449, 92 So. 580.

Defendant in order to be entitled to a continuance must exercise diligence in procuring process for his witnesses, and the same rule should apply to the state.

Thomas v. State, 61 Miss. 60; Ware v. State, 133 Miss. 837, 98 So. 229; Donald v. State, 41 So. 4.

Grave and prejudicial error was committed by the court in permitting the hospital records which were not properly identified, never introduced in evidence, to be paraded before the jury, and the witnesses from the hospital to testify therefrom.

Wooten v. Railroad Company, 89 Miss. 322, 42 So. 131; Chicago Railroad Co. v. Provine, 61 Miss. 288; Foster v. State, 70 Miss. 755, 12 So. 822; Dominges v. State, 7 S. & M. 475, 15 Miss. 475; 16 Corpus Juris 743.

Testimony of good character is always admissible for the defense and is not only always admissible, for what it is worth, but if on the minds of the jury it produces a reasonable doubt, this doubt may be acted on.

Lewis v. State, 93 Miss. 697, 47 So. 467; Powers v. State, 74 Miss. 777, 21 So. 657; McDaniel v. State, 8 S. & M. 401; Westbrook v. State, 37 Miss. 327.

Forrest B. Jackson, Assistant Attorney-General, for the state.

Where there was no actual acquittal on the merits there is no bar to the second prosecution.

Ethridge's Mississippi Constitution, pages 110-115; Section 22, Mississippi Constitution of 1890.

The granting of a continuance to either party is a matter within the sound discretion of the trial judge, and there will be no reversal of a cause unless there be shown an abuse of discretion to the prejudice of the defendant.

Cox v. State, 103 So. 129, 138 Miss. 370; Rule XI, Supreme Court of Miss.

The record from which it is alleged the witnesses testified was not introduced as a part of the testimony and is, therefore, not subject to the condemnation of the case of Wooten v. Railroad Company, 88 Miss. 322, 42 So. 131, and appellant fails to show any prejudicial error.

Rule XI of the Supreme Court of Mississippi.

Testimony as to reputation of a defendant is inadmissible where the witness' knowledge as to the reputation, good or bad of the defendant was charged.

Carlisle v. State, 73 Miss. 387, 19 So. 207; Rule XI of the Supreme Court of Mississippi.

Argued orally by J. M. Talbot, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for the state.

OPINION

Smith, C. J.

The appellant was convicted of manslaughter, and appealed to this court, where the judgment against him was reversed. Harris v. State, 155 Miss. 398, 124 So. 493. On the return of the case to the court below, he was convicted of manslaughter, and has again brought the case to this court.

After the reversal of the judgment herein by this court on the former appeal, the appellant filed a plea of former jeopardy, the ground of which is that on the former trial he requested, and should have been granted, an instruction directing the jury to acquit him, and that this court so held on the appeal thereto, from which his counsel argue that to try him again for the same offense would be to place him twice in jeopardy therefor. A demurrer to this plea was sustained by the court below, and it committed no error in so doing, one of several reasons therefor being that section 22 of the Constitution 1890 provides that "there must be an actual acquittal or conviction on the merits to bar another prosecution."

During the progress of the trial, the district attorney discovered that he could not, under the rulings of the court, prove the death of Gaden by the employees of the hospital whom he had summoned for that purpose, whereupon the court, at his request, and over the objection of the appellant, suspended the trial from eleven-fifteen A. M. to nine o'clock the next morning, at which time the trial was resumed. This...