Kirby v. State

• Decision Date: 12 November 1900
• Citation: 78 Miss. 175,28 So. 846
• Court: Mississippi Supreme Court
• Parties: WILLIAM KIRBY v. STATE OF MISSISSIPPI

28 So. 846

78 Miss. 175

WILLIAM KIRBY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 12, 1900

October 1900

FROM the circuit court of Warren county HON. PATRICK HENRY, Judge.

Kirby the appellant, was indicted for murder, the indictment against him being statutory in form. It was found at the December term of the court, 1899, and was drawn by the Hon Patrick Henry, then district attorney of the circuit court district embracing Warren county. The case came on for trial at the March term of the court, 1900. The Hon. Patrick Henry ceased to be district attorney, and was appointed judge of the circuit court between the December, 1899, and the March 1900, terms of the court. The defendant objected to Judge Henry presiding in the case, but the objection was overruled. The defendant having been tried, Judge Henry presiding, and convicted, appealed to the supreme court.

Affirmed.

W. B. Ricks, for appellant.

The appellant objected to the honorable Patrick Henry as judge in this case on the ground that he had acted as counsel for the state, having drawn the indictment on which the appellant was tried. This objection was overruled and exception reserved. The appellant bases his contention upon this point on section 919 of the code of 1892: "The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or wherein he may have been of counsel, except by the consent of the judge and of the parties."

The clause, "wherein he may have been of counsel, " is certainly broad enough to cover the present case, and yet not so broad as to leave its meaning obscure. Owing, no doubt, to the clearness of the above statute and its utter lack of ambiguity, it has not been brought before our supreme court for interpretation. The only case in our reports which bears in any way upon this subject is Thomas v. State, 5 How. (Miss.), 20, which seems at first blush to be against us on this point, but further consideration will convince the court that this case has no application whatever, and that it is no longer a correct statement of the law of this state. In the first place, it simply decides that one who has formerly been counsel for the state is not precluded from sitting after trial and verdict and from "pronouncing the mere judgment of the law." This was merely a ministerial act, requiring the exercise of little or no judgment or discretion. There was no danger there of a prejudice to the defendant's rights, because he had already been found guilty. Again, this decision was based upon an old statute, passed in 1822, which was still in operation in 1840, when this opinion was delivered.

In discussing the qualification of a judge, Justice Trotter said: "It is very clear that it was a question of discretion, which belonged to him and for the exercise of which his course is not the subject of review in this court."

This, at that time, was quite true, because the statute of 1822 gave him that discretion. That statute means that, when a judge thinks he is unfit, he shall make known his unfitness and unwillingness to serve. Who but the judge himself is to say whether it is fit for him to try the case or whether he is willing to try it?

The question of the qualifications of a judge has arisen in other states, however, under statutes similar to our own. Terry v. State, 24 S.W. (Texas), 510, is an apt authority for our contention.

When a district attorney draws an indictmont he not only has laid himself liable to prejudice against the accused by hearing the evidence against him, but he has committed himself to the proposition which he is under an official duty to establish, that the accused is guilty as charged in the indictment. Wilkes v. State, 11 S.W. (Texas), 415; Johnson v. State, 16 S.W. 419, S.C. 29 Texas App., 526; People v. Suffolk Common Pleas, 18 Wend., 550; State v. Hocker, 15 So. Rep., 581; Tampa Street Ry. Co. v. Tampa Suburban Ry. Co., 11 So. Rep., 908, S. C. 30 Fla., 400; Whicher v. Whicher, 11 N.H. 348; Moses v. Julian, 84 Am. Dec., 114.

Monroe McClurg, attorney-general, for the state.

Under our system of criminal procedure, indictments are found by the grand jury in secret session, into which the district attorneys may not lawfully intrude. The district attorney is presumed not to be with the grand jury unless required by...