Lewis v. State
| Decision Date | 12 December 1904 |
| Citation | 85 Miss. 35,37 So. 497 |
| Court | Mississippi Supreme Court |
| Parties | ROBERT LEWIS ET AL. v. STATE OF MISSISSIPPI |
November 1904
FROM the circuit court of Harrison county HON. WILLIAM T MCDONALD, Judge.
Robert Lewis and Robert Allen, the appellants, were indicted jointly with one Patterson for burglary. A nolle prosequi was entered as to Patterson. Appellants were tried, convicted, and appealed to the supreme court.
On the trial a juror of the original panel was challenged for cause by the state, on the ground that he had a case pending against him in the court. This juror had a criminal case against him. The challenge was sustained, and defendants excepted. On the trial the state introduced Patterson as a witness. Defendants objected; the objection was overruled and they excepted. While the competency of Patterson as a witness was being discussed, the court had the jury retire over objection of defendants' counsel.
The opinion of the court contains a further statement of the facts.
Affirmed.
Harper & Harper, for appellants.
The first objection was made to the ruling of the court in sustaining the challenge made against one of the jurors, on the ground that the juror had a case pending for trial at that term of the court, over the objections made by the defendants' counsel. This challenge was made on a clause in Code 1892, § 2354, which provides that it shall be a good cause for challenging a juror that he has a case of his own pending in that court to be tried at that term. This clause of the statute does not apply to criminal causes, as the case belonged exclusively to the state, and he had no property right in it, and it was not a case of his own.
When the defendant, Patterson, was introduced as a witness, the attorney for the defendants objected to his competency as a witness because he was a party to the record and an interested witness; that he had neither been convicted nor acquitted, and no final order had been made upon the minutes of the court and signed by the judge dismissing him as a party from this joint indictment. The district attorney asked the court to dismiss the jury from the box and let them go out while this question was being discussed. The defendants objected and insisted that the jury should remain in the box and that Patterson be allowed to hear the discussion. The court overruled the objection and ordered the jury to retire to their room, out of hearing of the argument, over the objections of the defendants' counsel. This may belong to the discretion of the judge, but then again it may not. What harm could come to the state in case this jury had remained in the box and had heard this argument? The defendants had the right to ask that the jury be kept so they might have the opportunity to observe the conduct and manner of this co-defendant, Patterson, and the manner and behavior of the defendants and that of their counsel during the argument on the advisability of a defendant's testimony.
The judge then decided to allow the trial of Allen and Lewis to proceed and let the testimony be admitted. Mass v. State, 17 Ark., 327 (s.c., 165 Am. Dec., 435); Colther v. State, 20 Ark., 46; Brown v. State, 24 Ark., 627; McKenzie v. State, 24 Ark., 327; Andrews v. Vanduzer, 11 John., 31; Seymour v. Merritt, 1 Root, 459; People v. Vills, 10 John., 95; State v. Cart, 1 Coxe, 1; Peake's Evidence, 100, note; Rex v. Lafone, 5 Espinasse, 154.
In the next place, the prosecution wholly failed to prove the ownership of the store from which the goods were taken as laid in the indictment.
Physical possession and legal possession are not the same, and the state must show that he was in legal possession, whether by lease or ownership does not matter. For this reason the case ought to be reversed.
When the defendant, Robert Allen, was put upon the stand as a witness in his own case and the examination was concluded on the part of this defendant, the counsel for the state asked the witness if he had never been convicted of causing a horse to run over Judge Neville's little son at Biloxi, Mississippi; counsel for defendant objected strenuously, but he was forced to answer, in spite of counsel's objections, that he had been tried and convicted for the offense at Biloxi. He was then asked and forced to answer, over the objection of his counsel, if he had not been convicted of stealing some cigarettes at Gulfport. Again he said yes, he had been convicted.
It is not permissible to show in any trial at law that the defendant has been convicted of another crime differing from the one for which he is being tried, and the object being to show the intention of the defendant.
J. N. Flowers, assistant attorney-general, for appellee.
One Jackson, a member of the original panel, was challenged for cause by the state on the ground that he had a case pending in that court and for trial at that term. Counsel say that sec. 2354 of the code does not embrace jurors who have a criminal case pending in the court, triable at that term. We fail to discover the slightest merit in this contention.
It is insisted that the court below committed an error in permitting ...
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