Henry v. State

• Decision Date: 12 July 1963
• Docket Number: No. 42652,42652
• Citation: 154 So.2d 289,253 Miss. 263
• Parties: Aaron HENRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 289

154 So.2d 289

253 Miss. 263

Aaron HENRY v. STATE of Mississippi.

No. 42652.

Supreme Court of Mississippi.

July 12, 1963.

Jack H. Young, R. Jess Brown, Jackson, Robert L. Carter, New York City, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

RODGERS, Justice.

On Suggestion of Error, the original opinion in this case has been withdrawn by this Court and the following opinion is substituted in its place.

The appellant was tried and convicted in the Justice of the Peace Court of Bolivar County, Mississippi, on a charge of disorderly conduct of disturbing the peace of Sterling Lee Eilert. The charge was brought under Sec. 2089.5, Miss.Code 1942, Rec. On appeal to the County Court, the case was tried de novo, and appellant was again convicted. He was accordingly sentenced to serve sixty days in jail and pay a fine of $250. The Circuit Court affirmed the judgment of the County Court and appellant has appealed to this Court.

The evidence in this case reveals the following facts: On March 3, 1962, Sterling Lee Eilert 'hitchhiked' (begged an automobile ride) on the various highways from his home in Memphis, Tennessee, to the intersection of Highways 49 and 61 in Clarksdale, Mississippi. He arrived at this intersection about five o'clock in the afternoon, and about 5:30 o'clock appellant stopped his automobile at this intersection and invited young Mr. Eilert to ride with him. They proceeded along Highway 61 toward Shelby, Mississippi, and after they had passed Alligator, Mississippi, appellant asked Mr. Eiler about his sex life. It is not necessary to detail the ensuing conversation. It is sufficient to say that the foregoing conversation culminated in assault upon Mr. Eilert, in that appellant reached over and touched his privates. The State witness immediately requested the appellant to stop the automobile, and when it stopped, he got out and went to the back and got his suitcase. He looked at the tag on the car, and although he could not see all of the numbers on the tag, he remembered the number 1798. Mr. Eilert immediately sought the police, first by telephoning and finally by going to the police station. He gave the police a description of the automobile and the driver, as well as the numbers he saw on the tag. The officers promptly radioed Clarksdale for the name of the owner of the automobile from the records of license tags. This request was shown to have been made at 5:56 o'clock. The information was immediately given to the officers, that Aaron Henry was the owner of the automobile described by the witness.

The officers prepared an affidavit, which was signed by the witness Eilert. The affidavit was presented to the Justice of the Peace, Rowe, who issued a warrant for the arrest of defendant Aaron Henry. One of the officers took the warrant and the witness Eilert to Clarksdale and the warrant was turned over to the desk clerk at police headquarters. Notice was given to patrol cars by radio from the Clarksdale police station, notifying them to be on the lookout for appellant, Aaron Henry. This information was received by radio by officer Henry Petty at 6:04 P.M., and he immediately went to the drug store and home of Aaron Henry, but his automobile was not at the drug store or at his home. Later in the afternoon, appellant's automobile was located at his home ten or twelve minutes to seven o'clock. Notice was relayed by radio to the chief of police, who went to the home of the defendant and arrested him a few minutes before seven o'clock.

Appellant's defense to the charge was an alibi. His testimony shows that he left the drug store at 4:45 o'clock, and went to the Delta Burial Corporation. This is a funeral home operated by John Melcher. He said he remained at the funeral home until approximately 5:20 P.M.

Defendant introduced several witnesses who testified that they saw him at the funeral home between the hours of 4:45 and 5:20. Defendant also introduced his wife and two other witnesses who testified he arrived at his home about 5:30 or 5:35 o'clock. Defendant also introduced a large number of Negro professional men, doctors, dentists, ministers and professors, as well as colored plantation owners and business men, to prove his good character.

Appellant has presented four assignments of error, on appeal, alleged to have been made in the trial of this case in the court below, but only argues three propositions, namely: (1) The assumption of jurisdiction of the cause by the trial court deprived appellant of his constitutional rights in due process. (2) The court erred in not granting a new trial to appellant on the ground that the county court permitted the State to introduce evidence obtained by an unlawful search of his automobile. (3) Appellant's conviction denied due process of law to the defendant because it rested on insufficient evidence of the essential elements of the crime, and because of error in the court's rulings.

I.

The appellant based his first assignment of error upon 'the absence of competent evidence of the existence of an affidavit on March 3, 1962, the date of the commencement of prosecution of appellant * * *.' Appellant then argues that the justice of the peace had no jurisdiction to issue a warrant for the arrest of the defendant, Aaron Henry, and thereafter, the county court and circuit court had no jurisdiction of the cause because the defendant was alleged to have been convicted without due process of law.

The theme of appellant's contention is that no affidavit was made before a justice of the peace charging defendant with the crime; that in fact no warrant was issued by the justice of the peace before defendant was arrested. To sustain this thesis, appellant introduced one of his attorneys who testified (over objection of the State) that he called upon the county attorney and asked him if he had the affidavit 'pursuant to' the arrest of Aaron Henry. He stated that the county attorney told him he did not have the affidavit, but that it was in the custody of Mr. Rowe, the Justice of the Peace, at Shelby. He said the county attorney advised him it would be necessary to amend the affidavit. This attorney also testified that he called the justice of the peace on the telephone and said that he was informed that he had no knowledge of the arrest of Aaron Henry, and that it did not come before him on the date of the alleged affidavit. Appellant also testified in his own behalf, stating that the warrant served on him was not the warrant in the file certified to the county court by the justice of the peace.

The testimony for the State showed the prosecuting witness Sterling Eilert signed an affidavit and that thereafter the Justice of the Peace Rowe issued the warrant charging defendant with a misdemeanor. The warrant was delivered to Officer Charles Reynolds, who, in turn, delivered it to the desk sergeant at Clarksdale, Mississippi. Chief of Police Ben C. Collins secured the warrant and served it upon the defendant at his home.

The record further reveals that the defendant's attorney admitted that an amended affidavit was properly substituted for the original which was lodged with the justice of the peace on the 14th day of March (the day the defendant was tried in the justice of the peace court.) Defendant was arraigned and tried on the amended affidavit certified to the county court from a justice of the peace court. A copy of this amended affidavit was given to defendant's attorney, and no objection was made to the amended affidavit at the time of the trial in the justice of the peace court.

The appellant points out that Sec. 1832, Miss. Code 1942, Rec., requires that an affidavit be lodged with the justice of the peace charging commission of a crime before warrant shall issue for arrest of an offender.

This Court has repeatedly held that an affidavit is a prerequisite to prosecution for a misdemeanor. Moreover, we have held that a justice of the peace court has no jurisdiction of a criminal charge until an affidavit has been lodged with it. See the cases cited under the above Code Sec. 1832. This is also the general rule accepted in a majority of jurisdictions. See: 22 C.J.S. Criminal Law Sec. 143, p. 379; 14 Am.Jur., Criminal Law, Sec. 245, p. 937.

Amendments, however, are liberally allowed under our Mississippi procedure so as to bring the merits of a case fairly to trial. The following code sections are illustrative of this point. The applicable part of Sec. 1202, Miss. Code 1942, Rec., with reference to this subject is in the following language: 'On the trial in the circuit court of any case on such appeal the affidavit charging the offense and other proceedings may be amended at any time before a verdict, so as to bring the merits of the case fairly to trial on the charge intended to be embraced in the affidavit.'

Section 2535, Miss. Code 1942, Rec., is in the following language: 'When an appeal is presented to the circuit court in any criminal case from the judgment or sentence of the justice of the peace or municipal court, it shall be permissible, on application of the state or party prosecuting, to amend the affidavit, pleading, or proceedings so as to bring the merits of the case fairly to trial on the charge intended to be set out in the original affidavit; the amendment to be made on such terms as the court may consider proper.'

The foregoing Code sections are also applicable to appeals to the county court. See Sec. 1617, Miss. Code 1942, Rec.

We have often held that defective affidavits on which a defendant was convicted in a justice of the peace court could be amended in the circuit court on appeal. Coulter v. State, 75 Miss. 356, 22 So. 872; Triplett v. State, 80 Miss. 379, 31 So. 743; Brown v. State, 81 Miss. 137, 32 So. 952; Mays v. State, 216 Miss. 631, 63 So.2d 110; Simmons v. State, 179 Miss. 713, 176 So. 726; Moran v. State, 137 Miss. 435, 102 So. 388; Weddell v....