Hitt v. State

Citation181 So. 331,182 Miss. 184
Decision Date23 May 1938
Docket Number33135
CourtUnited States State Supreme Court of Mississippi
PartiesHITT v. STATE

Division A

1. CRIMINAL LAW.

Evidence indicating that prosecuting attorney awakened defendant who was asleep in jail, and stated that he was investigating the killing, and that "You don't have to tell me anything at all unless you care to," held to authorize admission in evidence of defendant's resulting confession, notwithstanding attorney's failure to warn defendant that confession might be used against him.

2. CRIMINAL LAW.

A county prosecuting attorney is not a "judicial officer" within meaning of rule that confession to judicial officer is incompetent, unless warning be given that confession will be used against the defendant (Code 1930 section 4220 et seq; section 4225).

3 COURTS.

The term "judicial officer," in the popular sense applies generally to an officer of a court, but in the strictly legal sense applies only to an officer who determines causes between parties, and quasi judicial powers conferred on officers do not make such officers judicial.

HON. JOHN M. KUYKENDALL, Judge.

APPEAL from the circuit court of Tallahatchie county, HON. JOHN M. KUYKENDALL, Judge.

Russell Hitt was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

J. O. Day, of Tutwiler, for appellant.

We think the most serious error committed by the trial court was made by it in admitting the testimony of Major James A. Blount, the county prosecuting attorney, who, as a witness for the State, was allowed to relate in detail a conversation he had with the accused, in the county jail at Charleston, some time after midnight of the night after the killing (same night of the killing, but around two o'clock in the morning), and permitting such conversation to be used and introduced by the state as competent proof of admissions and as a confession of appellant's guilt in connection with the alleged killing.

The county attorney, Mr. Blount, should never have testified in this trial. The court should not have permitted the jury to hear his testimony. There was a whole house full of eye witnesses at the scene of the killing. They knew how it happened, if anybody did. Mr. Blount was nowhere near the place where the shooting occurred. He knew none of the facts. He was the county prosecuting attorney--a judicial or quasi judicial officer, and, as such, it was his duty to act impartially in the conduct of the public business.

18 C. J. 1296, sec. 1; State v. Montgomery, 56 Wash. 443, 105 P. 1035, 134 Am. St. Rep. 1119; Cooley's Constitutional Limitations (7 Ed.), page 440, note 2.

If there is a reasonable doubt as to whether a confession was freely and voluntarily made, it must be excluded from the jury.

Fisher v. State, 145 Miss. 116, 110 So. 361; Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A. (N.S.) 1183; Underhill on Criminal Evidence (2 Ed.), sec. 126; People v. McMahon, 15 N.Y. 384; Whip v. State, 109 So. 697, 143 Miss. 757.

In the case of Whip v. State, 109 So. 697, 143 Miss. 757, the sheriff of Humphreys County and the county attorney went to the jail and procured a confession from the prisoner (Whip). Both testified "that these alleged confessions were voluntary; that they were made by appellant, without hope of reward or the fear of punishment; that neither of them held out any inducement whatever in order to procure the confessions, and that they knew of no such inducements having been held out to appellant by any one else, but neither of them testified that they warned the appellant that any confession he made might be used against him." This court held, in an able opinion delivered by Mr. Justice Anderson, "that the prisoner should be warned that any statement he may choose to make showing his guilt may be used against him on the trial."

Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A. (N.S.) 768, 92 Am. St. Rep. 607; Carothers v. State, 121 Miss. 762, 83 So. 809; Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. 598; 18 C. J. 1296, sec. 1.

Creekmore, Creekmore & Capers, of Jackson, for appellant.

Prosecuting attorneys are judicial or quasi judicial officers and as such must act impartially in the conduct of public business.

18 C. J. 1296, sec. 1.

It seems to make no difference whether the officer be a district attorney, county attorney, or city attorney so long as the officer is a prosecuting officer, but under the authorities he is a judicial officer under the decisions of many of the states, while under decisions of other states he is a quasi judicial officer.

State v. Ellis, 112 N.E. 98; Smith v. Parman, 101 Kans. 115, 165 P. 663, L.R.A. 1917F 698; Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001; Rock v. Ekern, 162 Wis. 291, 156 N.W. 197; 18 C. J. 1318, sec. 46.

A confession made to a judicial officer not admissible if accused is not warned of his constitutional rights.

Dick v. State, 30 Miss. 593; Simon v. State, 36, Miss. 636; Whip v. State, 143 Miss. 757; Ammons v. State, 80 Miss. 592; Carothers v. State, 121 Miss. 762; Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687; McDonald v. State, 70 So. 24; Daniels case, 57 Fla. 1, 48 So. 747; 1 R. C. L. 569.

W. D. Corm, Jr., Assistant Attorney-General, for the State.

The court has heretofore held in a number of cases that no caution is necessary when confessions are made to persons having no judicial authority.

Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. 598; Carrothers v. State, 121 Miss. 762, 83 So. 809; Donahue v. State, 142 Miss. 20, 107 So. 15; Brown v. State, 142 Miss. 335, 107 So. 373; Thomas v. State, 124 So. 766; Nichols v. State, 165 Miss. 114, 145 So. 903; Wohner v. State, 175 Miss. 428, 167 So. 622; Pullen v. State, 175 Miss. 810, 168 So. 69.

The precise question was raised in the case of Keeton v. State, 175 Miss. 631, 167 So. 68, although the question was not expressly decided. From the opinion in chief and the dissenting opinion, it appears that the confession used came as a result of persistent grilling by both the district and county attorneys. It is not clear that the defendant was or was not warned or cautioned. Nevertheless, the court held the confession which was used in that case competent. It could have done so only on the theory that neither the district nor county attorney had any judicial authority.

Reference to Chapter 101 of the Mississippi Code of 1930 will show that a county attorney has absolutely no judicial authority. His duty is that of prosecuting for the state. He is a partisan and has no power to judicially hear and determine causes which are presented in court.

State v. Kent, 27 L.R.A. 686.

OPINION

McGowen, J.

Appellant was indicted for the murder of Jeff Williams. His cause was submitted to a jury who found him guilty of manslaughter, and the court sentenced him to serve a term of twenty years in the state penitentiary.

It is unnecessary to detail the facts in this case. There was a conflict in the evidence as to whether or not the homicide was murder or manslaughter, and, on the other hand, whether or not the defendant killed the deceased in self-defense.

The county prosecuting attorney, called as a witness, testified that during the night, or in the early morning, after the homicide, he went to the jail, awakened the accused, and said: "I am the prosecuting attorney. I am down here making an investigation of the killing of Mr. Jeff Williams. . . . You don't have to tell me anything at all unless you care to." Thereupon the accused stated to him, among other things, that he killed Jeff Williams because he (Williams'"wouldn't flag" (we understand "flag" to mean here from the entire record that Williams was dancing with a woman and the accused desired to dance with her and wanted to take over Williams' partner); that he did not know Williams prior to this trouble; that the deceased had nothing in his hands that he saw; that he did not see him with a gun; that the accused was slightly wounded in drawing his weapon from his pocket; that he discharged the pistol three times and thought that the second shot killed Williams. The witness stated that he did not warn the accused that any incriminatory statement he made would be used against him.

The prosecuting attorney testified that the statement made to him by the accused was entirely free and voluntary, without any inducement, hope of reward, or fear of punishment being held out to him. No rebuttal evidence was offered as to whether or not the above statements were free and voluntary. On the preliminary examination the court held that the evidence was competent and overruled the general objection to the testimony, as well as the specific objection that the prosecuting attorney as a judicial officer had not warned the accused, and the evidence, the details of which we have not stated, was submitted to the jury.

At the time the so- called confession was made there was no doubt but that Hitt had shot and killed Williams. The homicide occurred at a dance in a room crowded with many people.

The only assignment of error is the action of the court in permitting the statement of the accused, as detailed by the prosecuting attorney, to go to the jury over objections, because the accused was not then and there warned by the officer that any statement he made would be used against him.

1. Assuming that the statement of the accused here in question is a confession rather than an admission which negatived the idea of self- defense, two questions are presented for decision: (1) Does the rule that a confession is incompetent when made to a judicial officer without a warning that the confession will be used against the defendant apply to such officers generally, or only when they are in the discharge of judicial duties;...

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2 cases
  • Miller, In re, 6069
    • United States
    • Nevada Supreme Court
    • February 25, 1971
    ...power to determine causes between parties. Cleveland C.C. & St. L.R. Co. v. People, 212 Ill. 638, 72 N.E. 725 (1904); Hitt v. State, 182 Miss. 184, 181 So. 331 (1938). An administrator of an estate possesses none of the characteristics or powers of a judicial officer. Kapetan, not being a j......
  • Oberly, Matter of
    • United States
    • United States State Supreme Court of Delaware
    • January 20, 1987
    ...parties or renders decisions in a judicial capacity." Black's Law Dictionary 761 (5th ed. 1979); see also Hitt v. State, Miss.Supr., 182 Miss. 184, 181 So. 331, 333 (1938); Commonwealth v. Wise, Ky.App., 351 S.W.2d 491, 492-3 (1961). Moreover, this case does not involve official acts by an ......

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