Jones v. State

• Citation: 104 Miss. 871,61 So. 979
• Decision Date: 19 May 1913
• Docket Number: 16,593
• Court: Mississippi Supreme Court
• Parties: PRESTON JONES v. STATE

61 So. 979

104 Miss. 871

PRESTON JONES v. STATE

No. 16,593

Supreme Court of Mississippi

May 19, 1913

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Preston Jones was convicted of unlawful retailing and appeals.

The facts are fully stated in the opinion of the court.

Suggestion overruled.

Louis C. Hallam, for appellant.

The only ground on which I can account for the decision of this court is that embraced in supreme court rule 11, and I cannot combat that rule and its unsoundness more forcibly, or in language more respectful and logical than that employed by that eminent and distinguished lawyer, the Hon. R. N. Miller in his recent address as president of the Mississippi bar association. He says in part:

"By rule 11, the supreme court announces: 'No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.' I most respectfully submit for the serious consideration of the bar of Mississippi that this rule, literally interpreted applied even by so able and fair-minded a court as now composes that august tribunal, is in fact revolutionary.

"No misdirection to the jury whatever, even though it be vital to the case, or even though the court should decline to define the rules of law by which the jury should apply the testimony; no improper admission or exclusion of evidence; no error of pleading or procedure (in either civil or criminal cases) shall reverse any case unless the judges think a miscarriage of justice has resulted.

"I feel confident that no particular harm or danger can overtake any litigant perhaps, at the hands of the present justices so just and kind-hearted as I know them to be, but by these rules the supreme court is making history. There is no telling how in the near future this rule may be applied, and I respectfully submit that the legislature, under our constitution, has no power to give effect to any such principles as are announced by this rule. It sweeps away at one fell swoop the doctrine of stare decisis which lies at the very foundation of the justice of all jurisprudence."

Mr. Sharewood in his essay on Professional Ethics has said of this great doctrine: "'As well in the domain of public as of private law the great fundamental principle for which our concern ought to be is that authority is sacred. There is no inconvenience so great, no private hardship so unbearable as to justify the application of a different rule to the resolution of the case than the existing state of the law will warrant. 'There is not a line from his pen,' says Mr. Binney of Chief Justice Tilghman,' that trifles with the sacred deposit in his hands by a decision according to a private opinion, or what 'he thought' it ought to be. Judicial legislation he abhorred; I should rather say dreaded, as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response, and when he obtained it, notwithstanding this clear perception of the justice of the case, and his great and intense desire to reach it, if it was not the justice of the law he declined to administer it. He acted on the sentiment of Lord Bacon 'that it is the foulest injustice to remove landmarks, and that to corrupt the law is to poison the very foundations of justice.'

"Again the same author says: 'Judicial legislation is much worse than legislative retrospection in another respect. The act of the legislature if carefully worded is at least a certain rule. The act of the judicial legislature is invariably the precursor of uncertainty and confusion. Apply to it the test which may be set down as unerring, never failing soon to discover the true metal from the base counterfeit: its effect upon litigation. A decision in conformity to establish precedents is the mother of repose in that subject; but one that departs from them throws the professional mind at sea without chart or compass. The conscientious counsellor will be compelled to say to his client that he can not advise. One cause is the general uncertainty to which it leads. Men will persuade themselves easily when it is their interest to be persuaded, that if one well established rule has been overthrown, another believed to be quite as wrong and perhaps not so well fortified by time and subsequent cases may share the same fate. The very foundations of confidence and security are shaken. The law becomes a lottery in which every man feels disposed to try his chance.'

"The constitution guarantees every man charged with crime the right to be charged by an indictment which will inform him of the exact nature and cause of the accusation against him--to have a public trial by a fair and impartial jury; it guarantees every man, however humble, in every case, either civil or criminal, a fair trial according to the law of the land. Every citizen is entitled to due process of law, which means a trial according to the law of the land.

"I fear the zeal of the judges to reform the so-called law, blinds them to the infinite value of all these safeguards of constitutional liberty. Every lawyer and every student of history knows that it is infinitely more important (to preserve these safeguards untrammeled than) that any number of criminals shall be punished.

"These legal doctrines and principles, as venerable and indestructible as the common law itself, doctrines that arise in every trial wherever the common law prevails, have stood by accused persons for very many centuries. In fact, our Anglo-Saxon ancestors brought them from the wild, unbroken forests of Germany, and in all the darkest hours of passion and vengeance and prejudice, they have placed hope and life where otherwise death and dispair ruled supreme. They are the very spirit of the ancient common law that survived the Danish invasion; they have outlived the Norman conquest, and have come to us over the waste of ages to make you and me free.

"A citizen of Mississippi may be denied any one of these rights and convicted on hearsay evidence, or evidence wholly illegal or inadmissible, and yet if the honorable judges think on the whole record he is guilty of some crime, though not the precise one charged against him, or, to put it in the other way, unless his innocence is manifest from the record, a conviction must be affirmed. A judge in one part of the state interprets the law in one way, and another judge in another part of the state in a different way, and yet both cases must be affirmed unless it appears to the judges of the supreme court who read the cold facts on the records, in a case of disputed facts too, that a miscarriage of justice has resulted.

"The rule enforced and applied literally would produce a condition of judicial tyranny from which the state would revolt. It was the birth of these great principles of freedom, and the refusal of the judges to enforce them that caused King Alfred of England to have forty-four of his judges to be hanged in one year because of their false judgments in this particular.

"The true rule must be that a miscarriage of justice has already resulted when the case has not been tried according to law, and the only business of the supreme court of Mississippi has heretofore been and ought to be to see that this error is corrected. Any other rule will bring chaos and confusion worse confounded. Infinitely preferable would it be to abolish our ancient system and make the jury judges of the law and the facts, and let the jury with the aid of law books be the final arbiters of both."

Frank Johnston, assistant attorney-general for the state.

There are four questions discussed by counsel for appellant:

1. The question of the competency of Davis' testimony.

2. The asking by the district attorney of the question of the defendant if his wife had been tried or convicted of a similar offense at this term of court.

3. The leading question asked directly by the court of witness Davis.

4. Whether the sheriff exposed the jury to improper influences and threw suspicion against the verdict rendered in the case.

I will discuss these questions in the order presented.

The testimony of Davis, the policeman of Jackson, instructing these two detectives to go to the house of defendant, and make a search for whiskey was only a preliminary matter. Counsel argues that this witness was permitted to testify in regard to his suspicions, that the wife of defendant was engaged in liquor selling; but upon careful examination of his testimony, I do not find such a direct statement as this and therefore the proposition of counsel is more an inference which he draws from the statements of the witness than any expression on the subject by the witness. Of course, it appears from the testimony of Davis that he instructed these two detectives to make the search, but at the same time it is equally true that the witness did not state any suspicion that he entertained on the subject. I respectfully insist to the court as a proper question to be considered whether or not it is not competent for the court to show as a fact that these two detectives had been authorized and directed by this policeman Davis to go on the expedition to the appellant's house. It does not necessarily involve the question of the guilt or innocence of the appellant, but is simply an explanation of why these officers went to the house on this afternoon or this night to search appellant's premises for liquor.

So far as this testimony is concerned, therefore, on this rule it may well be held to be competent evidence explanatory of the object of this searching...