Johnson v. State

• Decision Date: 02 November 1925
• Docket Number: 25066
• Citation: 105 So. 851,141 Miss. 49
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. STATE. [*]

105 So. 851

141 Miss. 49

JOHNSON v. STATE. ^[*]

No. 25066

Supreme Court of Mississippi

November 2, 1925

Division B

On Suggestion Of Error November 16, 1925.

1. CRIMINAL LAW. Ordering arrest of witness as he leaves stand prejudicial error.

To order sheriff, as material witness for defendant leaves stand, to take charge of him and hold him under bond to await action of grand jury is prejudicial error.

2. CRIMINAL LAW. For judge to charge witness with perjury prohibited comment on testimony.

For judge, in presence of jury, to charge witness with perjury in the case is violation of Code 1906, section 793 (Hemingway's Code, section 577), prohibiting him from commenting on the testimony.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Julius Johnson was convicted of the unlawful sale of liquor, and he appeals. Reversed and remanded.

Suggestion of error sustained; and reversed and remanded. Per curiam affirmed.

Engle & Laub, for appellant.

The court erred in directing the sheriff in the presence of the jury to arrest the witness, Sam Buchanan, and hold him under bond to await the action of the grand jury, and when this prejudicial fact was called to the attention of the court the court further erred in refusing to discharge the jury and enter a mistrial. Because the testimony of the witness Buchanan, contradicted the testimony of two others as to where appellant was at the time charged by the state, the learned judge a quo had our witness arrested in the presence of the jury.

This conduct on the part of the learned trial judge was tantamount to an instruction to the jury that our witness was a perjurer and had wilfully lied. It amounted to a comment in the presence of the jury on the credibility of our witness, and on the weight to be given his testimony.

In Robinson v. State, 87 So. 61, the judge simply warned a witness to answer such questions only as were asked, and the supreme court of Florida reversed the conviction because such a remark by the court was equivalent to a questioning of the credibility of the witness.

In Broadway v. State, 96 So. 649, the supreme court of Alabama reversed a conviction for a remark of the trial judge to the attorney to the effect that: "I put it that it was the theory of the state that it was a still" holding this an invasion of the province of the jury.

In Leverett v. State, 73 So. 273, 112 Miss 394, the supreme court of Mississippi reversed a conviction because the manner of questioning jurors in a homicide case indicated a disparagement of a certain defense.

If the trial judge was so absolutely convinced that appellant was where the two witnesses for the state said he was, and convinced to such a degree that he would order under arrest any witness disputing the two worthies who testified for the state, then indeed was it time for counsel defending to halt in offering witnesses on the stand only to have them slaughtered by a peremptory decree of the trial jurge, and subjected to prosecution for the higher crime of perjury.

In any Key numbered Digest, under the title "Criminal Law Key No. 654 and No. 656," numerous cases can be found holding that the trial court should do nothing or say nothing which might be construed by the jury as bearing on the weight of evidence or the credibility of a witness, or as indicating to the jury the court's frame of mind. Few, if any, actions by a trial court can be found more prejudicial to a defendant on trial for his liberty than is disclosed in this case.

J. L. Byrd, Assistant Attorney-General, for the state.

During the trial of the case the defendant offered a witness whom the circuit court ordered held for the grand jury, which order was made in the presence of the jury, but nothing was said or done that would indicate that the judge ordered him held for perjury, and no hint was given to the jury as to why he was being held. We respectfully submit, therefore, that this action of the court was not prejudicial and does not constitute error.

E. O. Sykes, for appellant, on suggestion of error.

It is respectfully submitted that the court erred in affirming the judgment of the circuit court in this case. The action and conduct of the circuit judge necessarily violated three fundamental rules of jury trials: (1) It denied to this appellant his Constitutional right to a fair and impartial trial by jury; (2) The judge invaded the province of the jury and instructed the jury on the weight of the evidence. (3) The judge invaded the province of the jury and instructed the jury on the credibility of a witness.

This was the ordinary criminal case with the ordinary alibi defense. There is nothing whatever unusual, impertinent or improper in the testimony of Sam Buchanan, who testified to the alibi for the defendant. There is nothing in this testimony from which a circuit judge could infer that justice was in any wise being insulted, or that palpable perjury was being committed.

Since this is true, we submit to the court that the circuit judge was not justified and had no right to order the sheriff immediately upon the conclusion of the cross-examination of this witness, in the presence of the jury, to arrest him.

It is, of course, fundamental that the jury is the sole judge of the weight of the evidence, and, further, that the jury is the sole judge of the credibility of the witnesses. Yet the court by its action, in the presence of the jury, in effect held that this witness was lying, that he was a palpable perjurer, that his testimony was entitled to no weight, that he was not a creditable witness, but a perjurer. By this conduct the circuit judge in the most forcible way possible invaded the province of the jury, passed on the weight of the evidence and the credibility of the witness.

It cannot be said that this is not the effect of his ruling because he did not state in the presence of the jury why he was having this man arrested; because a jury is composed of twelve men of common sense. They saw this witness permitted to take...