Hughes v. State

• Decision Date: 08 April 1940
• Docket Number: 34083
• Citation: 195 So. 311,188 Miss. 554
• Court: Mississippi Supreme Court
• Parties: HUGHES v. STATE

195 So. 311

188 Miss. 554

HUGHES v. STATE

No. 34083

Supreme Court of Mississippi, Division A

April 8, 1940

Suggestion Of Error Overruled May 20, 1940.

APPEAL from the circuit court of Alcorn county HON. CLAUDE F CLAYTON, Judge.

Wesley Hughes was convicted of manslaughter and he appeals. Affirmed.

Affirmed.

G. C Moreland, of Corinth, and Hugh N. Clayton, of New Albany, for appellant.

The court erred in extending the special term into the third week because the special term was a nullity and because there were no facts and no showing of facts to justify such extension.

It is the position of the appellant that the special October, 1939 term of the Circuit Court of Alcorn County, Mississippi was not called into being in the manner and form as required by Section 731 of the 1930 Code of Mississippi; that the said special term was a legal nullity and that, therefore, the extension of the said special term into the third week was a legal nullity, the court had no jurisdiction of this cause, thereby making the conviction of the appellant void and the cause should be reversed and remanded.

That the law is strictly construed with reference to special terms of court, the extension of court terms, and the adjourning of court where the judge be absent, as provided for by Sections 731, 732, and 733 of the 1930 Code, is established without any doubt by the case of Williams et al v. Simon, 135 Miss. 562, 99 So. 433.

Perry v. State, 154 Miss. 459, 122 So. 744.

There were no facts and no showing of facts to justify the order of the circuit judge in extending the term into the third week. The appellant was put to trial on October 12th, 1939, and on October 13th, 1939, because the jury could not agree on a verdict it was discharged and a mistrial entered. Then, upon the discharge of the jury, the district attorney arose and made a simple motion in the following language: "The state would like to ask that the term be extended for a week and that this cause be set for call Monday morning."

Code Section 732 indicates that there must be some reason for the judge to extend the term and there must be in existence facts on which his sound judgment could be based.

The court erred in overruling the objection of the plaintiff to the extended term.

The court erred in admitting testimony as to where Sam Jennings the deceased, worked: the route that he followed from his work home and all other facts with reference to his employment, the route he followed to and from his employment and what articles he carried on such trips.

Woods v. State, 90 Miss. 245, 43 So. 433; Richardson v. State, 123 Miss. 232, 85 So. 186; McCormick v. State, 159 Miss. 610, 132 So. 757; 30 C. J. 193, sec. 423.

The court erred in admitting testimony about appellant allegedly attempting to swap his pistol to Willard Sweat.

30 C. J. 203, sec. 433.

The court erred in admitting testimony that the appellant did not deny statements made by Jim Clark, Roy Bass, and Clifford Jones in county attorney's office as to how the killing took place.

Riley v. State, 107 Miss. 600, 65 So. 882; Anderson v. State, 171 Miss. 41, 165 So. 645; State v. Diskin, 34 La. Ann. 919, 44 Am. Dec. 448; State v. Goldfeder, 242 S.W. 403; Ellis v. State, 8 Okla. 522, 128 P. 1095, 42 L. R. A. (N. S.) 811; People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689; Yep v. U.S. 83 F.2d 41.

The court erred in admitting testimony that Jim Clark, Roy Bass, and Clifford Jones made similar statements as to how the killing occured, in the office of the county attorney in the presence of the appellant, and that he did not deny them.

Sherrod v. State, 93 Miss. 774, 47 So. 554; Sec. 1495 of 1906 Code (Sec. 1276 of 1930 Code); Thomas v. State, 117 Miss. 532, 78 So. 147; Stanley v. State, 97 Miss. 160, 53 So. 497; Blackwell v. State, 166 Miss. 524, 146 So. 628.

The court erred in overruling appellant's objection to the argument of the district attorney before the jury.

The court erred in granting to the state a manslaughter instruction. In presenting this question to the court as an alleged error in the lower court, I am fully aware of the decision of this court in Calicoat v. State, 131 Miss. 169, 95 So. 318, which has been followed consistently by many subsequent decisions, the latest being Bustin v. State, 185 So. 259.

I realize too that the question as to whether a defendant accused of murder, convicted of manslaughter, and given a new trial could be convicted of murder on a second trial has been settled in the case of Taylor v. State, 148 Miss. 713, 114 So. 823.

I trust I won't be considered presumptuous in view of this announced and often reaffirmed statement of this rule of law in suggesting that it should not apply to the instant case.

As far as I can learn, this is the first case before this court where there was a mistrial on the first trial when there was no manslaughter instruction given the state and there was a verdict of manslaughter when that instruction was given on the second trial. Were this a case when some of the elements of manslaughter were present, there might be some reason for saying such an instruction is appropriate. But, in this case, the appellant was either a murderer or an innocent man. By the testimony of Jim Clark he was a murderer; by the testimony of the appellant and Emmitt Gillard, he was an innocent man. Natural justice and common right entitle him to have a jury of his peers pass judgment on that issue and not to have a compromise issue as a basis for settlement given the jury.

Since the Calicoat case, supra, there have been repeated attempts made by the Bar of this state to have the rule announced therein modified or set aside. I do not believe that such positions steadily maintained by counsel for defendants is due to lack of knowledge as to the decisions of this state, but because it is their conviction that the reasoning of the Calicoat case is based upon a false premise.

Therefore, I most respectfully submit that such rule should be modified in a case such as this where the fact is established by the record of the first trial that the manslaughter instruction given in the second trial afforded a compromise verdict, which our courts do not favor.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

This case was tried at a special term of the Circuit Court of Alcorn County, which had been called by the judge thereof same being called for two weeks. During the second week this appellant was tried, and the result was a mistrial. Thereupon the court extended the special term for a period of one week and set this case for trial on the first day of the extended term. Appellant argues here that the special term was a nullity because there was no proper proof of publication of the notice calling the special term of court, and the special term being a nullity, the extension was likewise such. In the early case of Friar v. State, 3...