Hosey v. State
| Decision Date | 16 June 1924 |
| Docket Number | 24214 |
| Citation | 136 Miss. 5,100 So. 577 |
| Court | Mississippi Supreme Court |
| Parties | HOSEY v. STATE. [*] |
1. CRIMINAL LAW. One under indictment for sale of liquor thereafter
testifying before grand jury to facts relating thereto entitled to immunity.
When a person is under indictment for selling whisky, and thereafter testifies before a grand jury to facts relating to this alleged sale, he is entitled to immunity from prosecution under section 1792, Code of 1906 (section 2106, Hemingway's Code).
2. CRIMINAL LAW. Burden on defendant to establish facts constituting immunity.
The burden of proof rests upon the defendant to prove that he has testified to such facts before the grand jury.
3. CRIMINAL LAW. Accused entitled to acquittal, if jury has reasonable doubt as to whether immunity obtained.
The burden of proof in the entire case rests upon the state to show that the defendant is guilty beyond a reasonable doubt, and if the jury entertain a reasonable doubt, either as to the guilt of the defendant or as to his having testified before the grand jury about the facts for which he is indicted, then he is entitled to be acquitted.
APPEAL from circuit court of Jasper county, HON. W. L. CRANFORD, Judge.
Joe Hosey was indicted for the unlawful sale of intoxicating liquor. From the judgment rendered, he appeals. Reversed and remanded.
Judgment reversed, and cause remanded.
Deavours & Hilbun, for appellant.
There is but one question presented for determination in this case; and that is whether the appellant is entitled to protection against prosecution because of his having testified before the grand jury.
Appellant was indicted at the August term, 1923, on a charge of unlawfully selling intoxicating liquors. At the February term, 1924, a subpoena was issued for the appellant to appear before the grand jury at this February term, 1924, and he was asked about his knowledge of any violation of law in the second district of Jasper county. The appearance of the appellant before the grand jury was not voluntary, even if that would make any difference, and we understand under the decisions it cannot make any difference, for the foreman of the grand jury himself testifies that he had a subpoena issued for appellant to appear before the grand jury the day before he did appear. Section 1792 of the Code of 1906 (Hemingway's Code, section 2106); Lucas v. State, 130 Miss. 8, 93 So. 437.
Instruction number two given for the state clearly imposed the burden of proof in this case on the appellant, and the instruction itself specifically states that "the burden of establishing this fact rests upon the defendant," having reference to the testimony before the grand jury. And the instruction further on states that unless the mind of the jury is satisfied from the testimony taken as a whole that the defendant did testify, etc., it was the duty of the jury to find him guilty as charged.
The view of the appellant is that the burden of proof never shifts in a criminal case; that as to any issue submitted to a jury in a criminal case, the burden of proof is on the state to show beyond every reasonable doubt and not by a preponderance of evidence merely, the facts which are necessary to substantiate the truthfulness of the state's contention as to the issues submitted to the jury. In other words, in a criminal case, when an issue is submitted to a jury the burden is on the state and not on the defendant. If there be statutory exception to this rule, this case does not fall within any of those exceptions.
The view of appellant on this particular phase of the case was clearly presented in the second instruction asked for the appellant which reads as follows:
"Every reasonable doubt in reference to any matter connected with this case, which is submitted to the jury for decision, should be resolved by the jury in favor of the defendant and against the state." This instruction was refused.
An instruction was also refused by the court although it was an exact copy of the statute under which the appellant was indicted.
F. S. Harmon, Assistant Attorney-General, for the state.
The sole question before this court, is whether or not defendant comes within the immunity granted by the statute. This in turn depends on a bitterly disputed question of fact as to what defendant actually said in the grand jury room.
We turn now to the instructions which presented the question of law raised on this appeal. Counsel for the appellant insisted that instruction No. 2 granted for the state is erroneous.
The court will note first of all that the jury was here instructed that "the burden of establishing this fact rests upon the defendant." That is, that he gave evidence before the grand jury of such facts or circumstances growing out of the sale of the whisky for which he is being tried. Instruction No. 2 for the defendant seeking to place the burden of proof on the state was refused and the two may therefore be dealt with at this point together. It is true that the burden of proof is upon the state to establish beyond all reasonable doubt the corpus delicti and the defendant's complicity. But in this case there is no difference of opinion on this matter. The defendant admitted on the stand that he sold the liquor to these officers for two dollars. The officers testified that they bought it from the defendant for this price, and introduced the specific jar of liquor in evidence. There is no question whatever, as to the facts supporting the indictment.
But a very different question arises when the defendant instead of entering a plea of not guilty files a plea in bar, raising a distinct and independent matter of substantive defense entirely disconnected from the body of the crime charged. When such a distinct issue is raised, we earnestly insist that the burden of proof is upon the defendant and that this issue of fact must be decided by the preponderance of the evidence. The rule is laid down in 16 Corpus Juris, 531, par. 1000. See, also, Bennett v. State, 100 Miss. 694-698.
" Ake v. State, 6 Tex.App. 419, 32 Am. Rep. 586.
Charge No. 2 for the state, covers exactly the ground and correctly advised the jury whereas, the defendant in the two charges refused had failed to insert a word regarding the burden of proof. Charge No. 2 for the state fully protects the defendant's interest by instructing the jury that "unless the testimony taken as a whole has satisfied your mind that the defendant did, while before the grand jury, testify to such fact or circumstances connected with, concerning, or growing out of the said charge as set up in defendant's plea in bar, then in that event, it is your sworn duty to find the defendant guilty as charged." This takes care of all rights which the defendant has under the statute.
Section 2106, Hemingway's Code, is only intended to afford protection to those who have given testimony tending to incriminate themselves. The jury declared that this defendant did not give such testimony. Therefore, with this issue of fact determined, the defendant does not come within the protection of this statute. The case is therefore, clearly distinguishable from Lucas v. State, 130 Miss. 8, upon which appellant relies. In the Lucas case, Judge SMITH states in his opinion that the appellant claimed immunity That the statute was not intended to cover such a case as this, is shown by Turnage v. State, 99 So. 9, where this court held that one who takes the stand on behalf of a co-defendant who is being tried separately, is not entitled to immunity since the testimony was not being given for the state.
Joe Hosey was indicted for selling and retailing intoxicating liquors. About six months after this indictment was found and before Hosey was tried, he was subpoenaed and testified before another grand jury of...
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State v. Billups
... ... as a plea in bar and has approved instructions to the jury ... that if the jury believed certain facts with reference to the ... immunities that said jury should acquit the defendant on the ... merits of the case ... Lucas ... v. State, 130 Miss. 8, 93 So. 437; Hosey v ... State, 136 Miss. 5, 100 So. 577; Wall v. State, ... 105 Miss. 543, 62 So. 417; Thornton v. State, 143 ... Miss. 262, 108 So. 708; Evans v. State, 157 Miss. 645, 128 ... So. 737. [179 Miss. 355] ... We ... gather from the authorities in cases here cited that the ... judgment ... ...
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Pittman v. State, 47915
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