Long v. State

• Decision Date: 12 January 1903
• Citation: 33 So. 224,81 Miss. 448
• Court: Mississippi Supreme Court
• Parties: WILLIAM LONG v. STATE OF MISSISSIPPI

33 So. 224

81 Miss. 448

WILLIAM LONG v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 12, 1903

October 1902

FROM the circuit court of Monroe county HON. EUGENE O. SYKES Judge.

Long appellant, was indicted, tried and convicted of burglary breaking and entering a dwelling-house and stealing money therein, and appealed to the supreme court.

The evidence for the state was to the effect that Long entered the house of one Lawson at night. Lawson's daughter, a girl about sixteen years old, testified that she was awakened at night by cold hands on her face, and looking up she saw Long standing by her bed; that she called her father, when Long grabbed her, and told her to hush, that he would kill every one or have all the money on the place; that there was $ 3.25 in a tin box in the house, and her little brother, who was sleeping in the room, got that and threw it down on the floor, and it was not seen afterwards; that Long threw her down and grabbed her lips; that her little brother ran to the door and said, "Sister, here is papa, " when Long turned her loose and ran out. This witness also testified that on the evening before this occurrence she told Mrs Long, the wife of the defendant, that her father had gotten his pay for some work he had done, and had it at home, in order to go to Memphis on an excursion early the next morning.

The district attorney, in his argument to the jury, made the following remarks, to which defendant excepted, to-wit:

"The defendant was in the house on the occasion when his offense was committed not alone for the purpose of committing the crime for which he is indicted, but for the purpose of committing another crime, one of the vilest known." Upon objection interposed by defendant, the court replied that the jury would be correctly charged with reference to the matter.

Reversed and remanded.

McFarland & McFarland and George C. Payne, for appellant.

At the heels of the trial, after the original testimony for the state and that for defendant had been closed, the court, at the instance of the state, permitted the justice of the peace before whom the committal trial was had, over objections of the accused, to amend the papers purporting to show the testimony at that trial, by attaching his certificate and signature thereto, which had been omitted to that time.

Without the signature of the trial justice those papers were wholly inadmissible as evidence, and the parol testimony was competent to prove what they testified to at that time. Wright v. State, 50 Miss. 332, 335.

It was too late to so amend the papers, even at the commencement of the trial, before the introduction of evidence began. The statute, code 1892, § 1463, require that the justice "shall certify the proceedings and testimony so taken and return them to the . . . circuit court . . . . before its next term."

But the papers were utterly incompetent, even after the certificate and signature of the justice had been attached thereto, for other reasons. They were not written until after the committal trial closed, and did not, therefore, contain the evidence--its substance--but only the recollection of the justice of the substance of the testimony of some of the witnesses.

The failure of the justice to take down the testimony of all the witnesses was fatal, notwithstanding the amendment. The certificate contained the statement of Charles Lawson made before the justice. He was not a witness at all on the trial then progressing in the circuit court. The statement was that he saw the defendant at the house that night. The paper was introduced in rebuttal of testimony for accused, showing contradictions in statements of witnesses for the prosecution in the court below, made at the trial going on and at the committal trial. This dangerous statement of Charles Lawson was not in rebuttal, therefore, but original testimony. It was fatal error to allow it to go before the jury. Cunning v. State, 79 Miss. 284.

The testimony of Lilly Lawson for the state relative to the excursion trip of her father to Memphis, and the receipt by him of money from the railroad company in payment for work, over objections was error. It was utterly incompetent. The purpose was to show that the accused had knowledge of these facts, upon the assumption that his wife told him of them.

During his argument counsel for the state said...