Jones v. State.

• Decision Date: 01 February 1926
• Docket Number: 25077
• Citation: 107 So. 8,141 Miss. 894
• Court: Mississippi Supreme Court
• Parties: Jones v. State.

107 So. 8

141 Miss. 894

Jones v. State.^[*]

No. 25077

Supreme Court of Mississippi

February 1, 1926

(In Banc.)

1 COURTS. Court must be held at courthouse or place designated by proper authorities.

There is no authority in law for holding court at any other place than the courthouse or the place designated as such by properly constituted authorities.

2 HOMICIDE. Defendant's rights held prejudiced by moving of court to scene of homicide and inquiring into facts of killing not necessarily connected with scene being examined.

Where court, under Code 1906, section 2720 (Hemingway's Code section 2213), removed itself away from courthouse for purpose of viewing scene of homicide, and testimony elicited at such place was in an effort to prove defendant's guilt rather than have witness point out scene of homicide and elicit information necessary to understand location being examined, held that, defendant's rights were prejudiced thereby.

3. HOMICIDE. What examination away from courthouse must be devoted to, stated.

Examination away from courthouse, under Code 1906, section 2720 (Hemingway's Code, section 2213), must be devoted to the explanation of the scene of the homicide, location of distances, and such testimony as tends to make a complete map of the situation; and statute will not be extended to permit development of substantive facts other than to point out scene and such facts as are necessary to proper description of scene.

4 HOMICIDE. Authorizing view of scene of homicide being in derogation of common law, rule strictissimi juris must be applied.

Code 1906, section 2720 (Hemingway's Code, section 2213), authorizing a view of scene of homicide, being in derogation of the common law, the rule strictissimi juris must be applied.

5. HOMICIDE. Going beyond stipulations of statute authorizing view of scene of homicide must be presumed to be harmful to defendant.

Whenever the court goes beyond and not within the stipulations of Code 1906, section 2720 (Hemingway's Code, section 2213), permitting exceptions to the rule that the court shall not migrate from place to place, then all that is done and said must be assumed to be harmful to defendant.

ANDERSON, J., and SMITH, C. J., dissenting.

HON. W. A. ALCORN, JR., Judge.

Marshall Jones was convicted of murder, and he appeals. Reversed and remanded.

Roberson, Yerger & Cook and Brewer, Brewer & McGehee, for appellant.

Section 2213, Hemingway's Code, provides for the inspection or viewing of the property or the place at which the offense is charged to have been committed and declares that such place or object "shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by him and by the representative of each side at the time and place of such view or inspection." What may the witnesses be asked about What is the limit of the authority prescribed by this statute? The statute says: "In reference to any material fact brought out by such view or inspection." This sentence is all the authority with which the court is clothed.

This is a statute enlarging the scope of testimony in a criminal case. It renders competent evidence which was not competent before its passage. It must be strictly construed and nothing shall be added to it by implication.

The testimony of the five witnesses was not pointing out any view or object. It was not in reference to any material fact brought out by such view or inspection. It was not such procedure as was even contemplated by the legislature and not authorized by the statute.

This court held in Carter v. State, 100 Miss. 342, that under the law, the trial must be had at the courthouse at the county site of the county, and the court further said at page 345, "It was there, and there only, that the case must be heard and determined."

If the court could take the testimony of these five witnesses over in Blind alley away from the courthouse over the defendant's objection, they could proceed to empanel a jury at the courthouse and immediately move, taking the defendant over his protest to some inconvenient, uncomfortable place and there proceed to conduct the trial, and no court ought to sanction any such procedure and no law authorizes any such procedure.

It cannot be said that the testimony of these five witnesses was immaterial because it was almost the state's whole case. It cannot be said, as in the McPherson case, 124 Miss. 361, that the point is raised for the first time in the supreme court, for it was then and there raised. It cannot be said that no harm was done the defendant, because he admitted all the facts testified to, since here he denied and introduced witnesses to prove that the statements were not true and they were sharply at issue in the trial, and the affirmance of this case would open a wide field of bad practice that should not be tolerated in any court, that robs the defendant of his constitutional rights to a fair and impartial trial and we submit that the order of the court ordering the sheriff to take him away from the courthouse and carry him down into this alley was in violation of his constitutional rights. See Hayes v. Territory, 7 Okla. 15, 54 P. 300; State v. Mortenson, 26 Utah 312, 73 P. 562.

This court has held repeatedly that any order of the court made outside of the courthouse is void. Sexton v. Coahoma County, 86 Miss. 380; Harris v. State, 72 Miss. 960; secs. 3680 and 3695, Hemingway's Code. Boards of supervisors have the absolute power under the statute to provide the courthouse and jail and the statute requires that there the courts shall sit. Carter v. State, 100 Miss. 345. In Hanley v. Medford, 56 Ore. 171, the court says: "To constitute a lawful court, the persons who assume to hold the court and dispense justice must be officially assembled under authority of law, and the court must be held at the appropriate time and place appointed by law therefor." See, also, Ex parte Branch, 63 Ala. 383; People v. Pisano, 142 A.D. 524. J. L. Byrd, Assistant Attorney-General, for the state.

The district attorney filed a motion under section 2213, Hemingway's Code, asking that the court proceed to the scene of the homicide in order that the jury might view the place and in order that the physical situation there might be made known. To that the defendant objected, but the objection was overruled and the order thereon is in the exact language of the statute. By a reading of section 2213, Hemingway's Code, it will be seen that power is given to the circuit court to take the jury with the court and all of the parties connected to the scene of the matter in controversy and there question the witnesses in the case, or permit them to be questioned by the representative of each side in reference to any material fact brought out by such view or inspection.

Our contention is that in the examination of these witnesses who have just been referred to, all that was brought out was the physical situation there at the scene of the homicide or with reference to some material fact brought out by such view or inspection. The only possible thing that could be said not to have been such was the testimony as to the appellant's shooting the deceased and as to what was said after deceased fell and appellant approached him. The appellant admits the shooting and admits that he walked up to the deceased, and that the deceased asked him not to shoot him any more. These things, we submit, then could not have injured the appellant's cause in any way. Great stress is laid on the introduction of this testimony but counsel fails to point out anywhere how or by what means or in what manner the appellant's cause was hurt.

We find a long dissertation in the brief on the constitutional rights of the appellant to be tried in the courthouse and a long citation of authorities starting at the right of the board of supervisors to meet at a place other than the courthouse and coming on down the line, but we submit that the authorities thus cited are not in point, because in the instant case there was a statute directly authorizing the procedure taken by the court in viewing the scene. The only question in the whole proceeding was whether or not the appellant was injured or harmed in any way by taking the testimony of substantive matters there at the scene of the homicide. All of this testimony, we think, was in reference to material facts brought out by the view or inspection.

The case of Carter v. State, 100 Miss. 342, is no authority in this case, because in the Carter case the court went to the home of a witness who was unable to come to court and there took the witness's testimony.

Counsel say that the witnesses could not have been punished for perjury. We call the court's attention to the fact that the statute provides that the court shall remain in session and it is in session for all purposes when the view of the scene is had, as in this case, and we do not see how under any stretch of the imagination it could be said that a witness could not be held for perjury if in fact he was guilty of perjury. The statute expressly condemns false swearing in any procedure in any court without reference to where the court is held and under the statute we say that the court was as much in session there in Oil Mill alley where they went to view the scene as if they had been in the courthouse of Coahoma county.

We submit that the action of the court in receiving this testimony, under the circumstances of the case, was not error sufficient to reverse the cause, if error at all--- which we do not concede. Roberson, Yerger & Cook, and Brewer, Brewer & McGehee, in reply, for appellant.

Before you can deprive a man of his life in this state, he must be...