Lipscomb v. State

• Decision Date: 27 February 1899
• Citation: 25 So. 158,76 Miss. 223
• Court: Mississippi Supreme Court
• Parties: W. H. LIPSCOMB v. STATE OF MISSISSIPPI

25 So. 158

76 Miss. 223

W. H. LIPSCOMB v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 27, 1899

November 1898

FROM the circuit court of Kemper county, HON. GREEN B. HUDDLESTON Judge.

W. H Lipscomb, the appellant, was defendant in the court below. The facts are fully stated in the opinion of the court. For previous report of case, see Lipscomb v. State, 75 Miss. 559.

Judgment affirmed.

J. H Neville and J. H. Currie, for appellant.

The remarkable medical board wrongfully appointed in this case presumed, after an examination of the appellant, lasting not over three hours (an examination by each member of the board personally), that there was nothing in the physical or mental condition of the appellant to forbid his going into a trial, and the court accepted this opinion over the sworn testimony of appellant and his attending physician. This court knows, despite the opinion of the medical board, that, if the facts testified to by appellant and his attending physician are true (and they are nowhere denied), it was a travesty on justice to compel the appellant to enter upon his trial at that time. Appellant was deprived of a constitutional right when he was denied the right to cross-examine the physicians who had been appointed by the court to examine him. Conceding, for argument's sake, that the court had the right to appoint a board of medical examiners to examine and report on the mental and physical condition of appellant, the court did not have the right to receive the result or conclusion of their examination in writing and act upon the same. In other words, the court did not have the right to receive their written report on appellant's motion for a continuance. When these gentlemen composing this board had made their examination and were ready to report to the court, or give their evidence on the motion then pending before the court, appellant had the constitutional right to be confronted by those witnesses, and had the further right to be present and cross-examine them, all of which was denied him, for the record in this case discloses the fact that this remarkable report of this remarkably created board was received by the court in the absence of the defendant. The constitution of the state, section 26, gives the defendant the right to be confronted by the witnesses against him in all criminal prosecutions. This was a criminal prosecution, and this motion was the hearing of a portion of appellant's trial. Sperry v. Commonwealth, 9 Leigh, 623; 33 Am. Dec., 261; Fight v. State, 7 Ohio; 28 Am. Dec., 626; Prime v. Commonwealth, 18 Penn. St., 103; Waller v. State, 40 Ala. 333; Wharton's Crim. Plead. & Prac., sec. 540; 1 Bishop's Crim. Prac., 231; Jackson v. Commonwealth, 19 Grat., 656; Andrews v. State, 34 Tenn., 550; Holton v. State, 2 Fla., 476; Witt v. State, 5 Cold., 11; Gladden v. State, 12 Fla., 577; State v. Barnes, 59 Mo. 154; Younger v. State, 2 W.Va., 579; State v. Buckner, 25 Mo. 167; Maurer v. People, 43 N.Y. 1; Sweden v. State, 19 Ark., 205; ex parte Bryan, 44 Ala. 402; People v. Kohler, 5 Cal. 72; Hill v. State, 17 Wis., 675; State v. Alman, 64 N.C. 364.

While it is true the matter of granting or refusing a continuance is a matter in the discretion of the trial court, yet it is also equally true that it is a legal discretion, and, when it appears to have been abused, the appellate court should not, and does not, hesitate to reverse a case for such abuse of discretion, as this court has time and time again held. This court cannot confidently say, looking back on this whole trial, that the appellant was not deprived of some legal right by the action of the court in rushing him into a trial in his physical and mental condition.

We submit that, under the testimony of this case, the sheriff was not interested in this cause, nor was he, for other cause, incapable or unfit to execute his office, and his displacement and the appointment of the coroner was unauthorized, and, if unauthorized, was illegal, and thus another one of appellant's substantial rights was infringed by the courts. People v. Welch, 49 Cal. 177.

There was a clear interference by the court with the sheriff in the discharge of a duty which had been placed by the law on that officer; a duty in the discharge of which no judicial officer or partisan counsel had any right to interfere or make suggestions. Code 1892, § 4116, Conner v. State, 25 Ga., 515; State v. Doyall, 13 La. Ann., 418. The reasons why a defendant charged with crime should not be called upon to choose between persons who are about to be selected as bailiffs to summon a list of persons to serve as jurors on the trial of his case are too many and too patent to need any mention by us, and the reasons why those who are engaged in his prosecution should not have anything to do with this matter of approving or disapproving of the persons selected by the sheriff to discharge this duty are equally as numerous and as strong, hence the law has left this matter to the sheriff, and the record of this case discloses the fact that he did not discharge that duty without interference. The law never contemplated that the court should hold the sheriff up in the discharge of his duty, and refuse to swear in the officers selected by him to serve process, until one or the other or both of the parties to the cause in which the process was to be served was satisfied with the person so selected.

The questions raised by the sixth and seventh assignment of error call for a construction by this court of § 933 of the code of 1892. So far as we have been able to find, only two states in the union have statutes similar to this, and those two are Indiana and North Carolina. In neither of these states has the precise question at bar been determined, so far as we have been able to ascertain.

In the case at bar, we earnestly insist that the court was without jurisdiction to proceed after the time fixed by law for the termination of the court, for the reason that the trial of the case had never commenced, nor was it in progress. The fact is that no single juror had been accepted by the defendant, or even tendered him for acceptance. We insist that when the parties, styling themselves the circuit court of Kemper county, assembled, on March 21, 1898, they were not a court, and were, therefore, without authority to proceed to hear this cause. We presume that it will not be admitted or questioned that, if the court was without jurisdiction, the judgment rendered by it is void, and can be inquired into here. Parties cannot consent to try a case at a term of court when the court has not jurisdiction to try the case, or which is not being lawfully held. Wicks v. Ludwig, 9 Cal. 173; Norwood v. Kenfield, 34 Cal. 329; Parker v. Munday, Cox (N. J. Rep.), 70; Germond v. People, 1 Hill (N. Y.), 343; Mills v. Commonwealth, 13 Pa. 627.

If it should be contended that the circuit court of Kemper county had jurisdiction at the time to try this case, for the reason that the trial had commenced and was in progress, then we as stoutly contend that there was no commencement of that trial or hearing of this case, and that the case was not in progress. What is a trial? Mr. Bouvier, in his law dictionary, defines a trial as "The examination, before a competent tribunal, according to the laws of the land, of the facts put in issue in a case, for the purpose of determining such issue." Vol. 2, p. 749. We find, in the Century Dictionary and Cyclopoedia, this definition of a trial: "In law, the judicial investigation and determination of the issues between parties--that part of litigation which consists in the examination by the court of the point in controversy--the hearing of the evidence, if any, and the determination of the controversy, or final submission of the cause for such determination. . . . When used of a criminal cause, 'trial' commonly means the proceedings in open court, after the pleadings are finished, and it is otherwise ready, down to and including the rendition of the verdict. Not extending, on the one hand, to such preliminary steps and the arraignment and giving in of the pleas, it does not comprehend, on the other hand, hearing on appeal."

Under the definitions given by these learned authors, we insist that, in this case, the trial had not commenced, nor was it in progress. When does the trial of a criminal case begin, or commence? In our opinion, the trial of a criminal case cannot be said to begin until jeopardy begins; and it will be interesting to know when jeopardy begins. The best authorities all agree that whenever a person shall have been given in charge, on a criminal indictment, to a regular jury, that jeopardy then begins, and not before. Suppose that the constitution of 1869 was the organic law of this state to-day, and that the statute now under consideration was the law of the land. Suppose a defendant charged with murder was placed upon his trial and the hour had arrived for the termination of the court, by operation of law, and a full jury had just been elected and empanelled, and the court, of its own motion, or at the instance of the state, should declare that the case could not be finished before the expiration of the term, and thereupon discharge the jury, remand the prisoner, and continue the case until the next term of the court, would it be contended by anyone that this would not constitute jeopardy? Suppose that, on the other hand, the time for the adjournment of the court had arrived, and only a portion of the jury had been selected or declared competent by the court, and not one member of it selected by the defendant, when the court should discharge the jury and continue the case, would anyone contend that the prisoner had ever been in jeopardy?

Surely the beginning of...