Jenkins v. State ex rel. Sweat

• Decision Date: 22 January 1962
• Docket Number: No. 42035,42035
• Citation: 242 Miss. 646,136 So.2d 580
• Parties: Earnest JENKINS v. STATE of Mississippi ex rel. N. S. SWEAT, Jr., District Attorney and Cason Rankin, County, Attorney.
• Court: Mississippi Supreme Court

Page 580

136 So.2d 580

242 Miss. 646

Earnest JENKINS v. STATE of Mississippi ex rel. N. S. SWEAT, Jr., District Attorney and Cason Rankin, County, Attorney.

No. 42035.

Supreme Court of Mississippi.

Jan. 22, 1962.

Hugh N. Clayton, New Albany, B. T. Mitchell, Tupelo, for appellant.

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

McELROY, Justice.

A petition was filed in the Chancery Court of Lee County, Mississippi, under Section 2646, Miss.Code 1942, Recompiled, seeking to establish unlawful possession and sale of whiskey on the premises of appellant, described in the petition to be declared a nuisance and enjoining him from the further violation of the prohibition laws. A temporary injunction was granted, and on final hearing on a motion to dissolve the injunction it was made permanent.

In a companion case, No. 42,036, Earnest Jenkins v. State of Mississippi, recently decided by this Court, 136 So.2d 205, an information styled petition to cite for contempt was filed by the district attorney and county attorney in the Chancery Court of Lee County, based upon an affidavit of the county attorney. The facts in this case are very similar to the contempt case, and reference is made to that case. The Court held 'We are of the opinion that the state did not establish the charge of contempt against appellant, wherein it is sought to show that he sold intoxicating liquor, or sold it through an employee or agent, on the property described. Moreover, insofar as the sale of beer is concerned, there is no evidence in the record that it is unlawful to sell beer in Lee County.' The case was reversed and defendant discharged.

The facts in this case are that in September 1958 appellant and wife acquired a one-acre tract of land on a county road north of Tupelo, Mississippi, abutting a part of the Natchez Trace. In July 1960, a deed was executed by appellant and wife to one Jim Henderson covering 70 feet off the south side of this property. The description of the land, which is a pertinent fact in this suit, is not in controversy in view of the fact that the deed to appellant and wife and the deed from appellant and wife to Henderson were introduced in evidence by agreement, and a detailed plat of survey was put in evidence by appellant showing the exact lay of the land, the location of all improvements thereon, including houses, out-buildings, driverways, fences, trees, etc., nor is it controverted that appellant lives on the property described in the petition, but not on the 70-foot strip conveyed to Henderson; nor is it converted that whiskey was purchased by the prosecuting witness, the county attorney of Lee County, Mississippi, from the described premises, being delivered to him from a shack located on the 70-foot strip belonging to Jim Henderson.

The appellant assigns as error that the lower court permitted the county attorney to testify over his objection; and that it erred in making the injunction permanent since the evidence was insufficient to justify the injunction. Petition for the injunction was filed by the district attorney, but for some reason the record is silent as to his participation in the trial. The case was prosecuted exclusively by the county attorney. Using the testimony of the county attorney as a basis, he then in a second role as attorney for the State, over objection of appellant, testified that he purchased a pint of intoxicating liquor from a Negro that came from a shack on the 70 feet of land owned by Jim Henderson. At a later date, the county attorney, with the deputy sheriff, went back to the premises to identify the colored boy from whom he made the purchase. He was located at the same shack on the 70 feet of ground in question owned by Jim Henderson. The appellant was standing in the door drinking a can of beer. The record does not show that the possession of beer is illegal in Lee County. The record also fails to show that anyone was convicted of selling whiskey or possessing beer.

An analysis of the evidence for the State indicates that the county attorney testified only to the fact that when he purchased the Old Crow whiskey on November 11, 1960, he saw Earnest Jenkins standing in the doorway of the shack in the southeast corner of Jim Henderson's land. He did not testify as to any overt act on the part of Earnest Jenkins, did not establish any relationship between Earnest Jenkins and the Negro who sold the liquor, nor did he establish the ownership or control of the property from which the purchase was made.

The county attorney assumed the initiative and advocate of the witness, and the record shows that he filled both roles with vigor and zeal. The appellant objected to his testimony because he was acting as attorney for the State, but the objection was overruled by the learned chancellor.

It is our opinion that to permit the county attorney to act as advocate for the State and testify as a prosecuting witness constitutes reversible error. The leading case on this subject is Adams v. State, 202 Miss. 68, 30 So.2d 593. In that case the district attorney accompanied a deputy sheriff in making a raid for liquor just as Mr. Rankin accompanied Deputy Sheriff Mitchell Moore on the night of November 11, 1960. Objection was made to the testimony of the district attorney but the objection was overruled, and such action was assigned as error. In that case this Court held:

'Certainly, 'The prosecuting attorney should exercise diligence in prosecuting for criminal offenses, and where he is informed that a crime has been committed, but no complaint has been made, it is his duty to inquire into the facts, but he is not required to assume the functions of a detective and undertake personally to discover the circumstances of the alleged offense. * * * He cannot control the action of the sheriff or marshal in the execution of warrants.

* * * In conducting a criminal case, the prosecuting attorney must be fair and impartial, and see that defendant is not deprived of any constitutional or statutory right.' Section 42C, 18 C.J. 1314; 27 C.J.S. District and Prosecuting Attorneys Sec. 14. (Italics ours.) In this connection, the authorities agree that the district attorney is a quasi-judicial officer. Appeal of Nicely, et al., 130 Pa. 261, 18 A. 737. In discussing this phase of the prosecuting attorney's duties, the Supreme Court of Oregon held that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional or statutory rights as it is to prosecute him for the crime with which he is being charged. State v. Osborne, 54 Or. 289, 103 P. 62, 20 Ann.Cas. 627.

'The very nature of his functions as a prosecutor necessitates that the district attorney be a partisan in the case. Zeal in the prosecution of criminal cases is a praiseworthy and commendable trait in such an officer, and not to be condemned by anyone. A fearless and earnest prosecuting attorney, within the limitations upon his powers and prerogatives, is a bulwark to the peace, safety and happiness of the people. 'If convinced of the defendant's guilt, he should, in an honorable way, use every power that he has to secure his conviction. At the same time, it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, * * * It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury; * * *.' 42 Am.Jur., Sec. 20, p. 255.

'Section 23, a part of the Bill of Rights, Constitution 1890, directs that 'The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; * * *.' Violation of this constitutional guaranty by an unreasonable search is tantamount to compelling defendant to testify against himself. Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346. But this section is not violated where the home and premises of a defendant were searched by his consent. Faulk v. State, 127 Miss. 894, 90 So. 481. Although a waiver of its protection is not created by the defendant neither objecting nor consenting to the search. Boyd v. State, 164 Miss. 610, 145 So. 618. The appellant here never consented to the search. In fact, she assaulted the district attorney in resisting it. In dealing with such searches, we must bear in mind that provisions for search and seizure are construed strictly against the State. Elardo v. State, 164 Miss. 628, 145 So. 615. The statutes involved are Sections 2613, 2614, 2615, 2616, Code 1942.

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'A district attorney, while justified in zealous partisanship in the discharge of his duties as a prosecutor, must be fair and impartial too in...