Herrington v. State
| Decision Date | 09 January 1911 |
| Citation | 53 So. 783,98 Miss. 410 |
| Court | Mississippi Supreme Court |
| Parties | L. L. HERRINGTON v. STATE |
October 1910
APPEAL from the circuit court of Jefferson Davis county, HON. A. E WEATHERSBY, Judge.
The facts are fully stated in the opinion of the court.
Judgment reversed.
R. H Dale and Dale & Hall, for appellant.
Appellant Litt Herrington, was indicted by the grand jury of Jefferson Davis county at the December, 1907, term for the unlawful sale of intoxicating liquors. At the regular May term of the circuit court of said Jefferson Davis county, 1910, said appellant, Litt Herrington, was tried for said offense and was convicted and sentenced to pay a fine of five hundred dollars and to the county jail for ninety days.
The record discloses the fact that when the witness, Jordan Turner, upon whose testimony the bill of indictment was returned against appellant, Litt Herrington, was before the grand jury, the grand jury sent out after the sheriff, John Laird, and had him go before their body and there remain while said witness, Jordan Turner, was giving in his testimony, and had the said sheriff, John Laird, to assist them in the interrogation of said witness. The record discloses the further fact that it was not until after said sheriff, John Laird, was carried into the grand jury room at their request, that said Turner gave the testimony sufficient upon which the grand jury could return an indictment. This we contend is fatal to the indictment, and the plea in abatement which was filed by counsel for appellant should have been sustained in his favor and appellant discharged.
It is evident from the record that witness, Jordan Turner, would not have given the testimony upon which the bill of indictment was returned against appellant, Litt Herrington, if the grand jury had not procured the presence of said sheriff, John Laird.
It has been held by this court that even where permission was given by the court to an attorney who was employed to assist in the prosecution to go before the grand jury with the witness, and there act for the district attorney in framing the indictment, was improper and error. Billdurr v. State, 53 Miss., page 425.
It has been held in this state that "Where an attorney, who though not employed to prosecute goes before the grand jury and as a private prosecutor--not a witness--uses his influence in furtherance of a presentment, which is made, the indictment will be held invalid." George Wilson v. The State, 70 Miss., page 595.
A plea in abatement to an indictment is good which alleges that the attorney for the prosecution procured himself to be summoned as a witness before the grand jury urging the finding of an indictment. "An indictment found under such circumstances should be quashed." Welch v. The State, 68 Miss., page 341.
In a case where it appeared that the bailiff and one member of the grand jury had entered a bar room and taken a drink, this court in passing upon this very point said, "It is not every act of misconduct on the part of jurors which may entitle the defendant to a new trial, but where such acts are shown, if they are of such character as may have prejudiced the defendant the presumption is that they did, and it devolves upon the state to establish the fact that such result did not follow." Green v. The State, 59 Miss., page 501. It is our contention that by not any means is it shown in this record that appellant, Litt Herrington, was not prejudiced by the presence of said sheriff, John Laird, in the grand jury room while said witness, Turner, was testifying there, and if it developed that there were present in the grand jury room others than that of the members of the grand jury and the witness himself, then it devolves upon the state to show that said witness was not influenced, and this, as we contend, has certainly not been shown in this case. In fact, it appears from the record that if the grand jury had not procured the presence of said sheriff, John Laird, witness Turner would never have given them the testimony upon which they returned this bill of indictment.
"At common law the presence of any person other than the witness undergoing the examination and the attorney for the state during the proceedings of the grand jury, is grounds for quashing." 22 Cyc., page 421.
"The presence of an expert witness while other witnesses are being examined before the grand jury and is propounding questions to them vitiates an indictment; and the court will not inquire whether the accused was prejudiced thereby." 6 Encyclopedia of Evidence, page 249. If this be the true rule, then when it appears to this court that the sheriff was in the grand jury room with witness Turner and there took a part in the examination and propounded questions to him, then as a matter of law that fact itself vitiates the indictment whether the accused was prejudiced thereby or not.
We think it is the purpose of the law that when a witness is before the grand jury testifying about any matter that he should not be subjected to the influence of any other person except that of the members of the grand jury themselves. We believe that the plea of abatement filed by appellant, Litt Herrington, should have been sustained and he discharged by the court. We think it was manifestly error on the part of the trial court in overruling appellant's motion in arrest of judgment.
Jas. R. McDowell, assistant attorney-general, for appellee.
There is only one assignment of error which need be introduced: Should the court have sustained a plea in abatement because of the presence of the sheriff in the grand jury room when the prosecuting witness was testifying before the grand jury?
By reading the record, the court will see that the sheriff went to a picnic where it was reported that appellant and others were selling liquor. The sheriff saw the appellant give a package to Turner, the prosecuting witness, and he afterwards hunted up Turner and found that it was a bottle of whiskey. It will be seen from the record that appellant and members of his family threatened violence to Turner if he testified against him. The sheriff gave Turner's name to the...
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