Magness v. State

• Citation: 60 So. 8,103 Miss. 30
• Decision Date: 09 December 1912
• Docket Number: 16,000
• Court: United States State Supreme Court of Mississippi
• Parties: A. P. MAGNESS v. STATE

60 So. 8

103 Miss. 30

A. P. MAGNESS v. STATE

No. 16,000

Supreme Court of Mississippi

December 9, 1912

APPEAL from the circuit court of Grenada county, HON. G. A. MCLEAN Judge.

A. P Magness was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Hill &amp McBee, for appellant.

We contend that it was error for the trial judge to extend the term of his court for the purpose of trying two cases. This is purely statutory and this exact question has never been decided so far as we can find, but it does seem that a reasonable construction of section 1009, Code 1906, would justify anyone in concluding that the term of court could only be extended to try one case which was being tried in good faith and in regular order at the very time the term of the court expired; then under the statute it could be carried past the regular term of the court for completion, the court being powerless to consider any other case except the one carried over. The language of the statute clearly means one case for the singular number is used and the word "any case." Then further the statute says, "bring it to a conclusion." Now, these are words of limitations we submit and the statute was intended to meet the emergency that often arises when a case is begun in term time and is unexpectedly extended beyond the term time, but there is no authority at law or anywhere else for a trial judge to suspend a case, one of the highest known to law, for the purpose of beginning the trial of another case in order to carry that second case beyond the regular term of the court especially so when it was evident and admitted that the case already on trial would have to be carried past the regular term of court for completion. We insist that the suspension of one murder case in order to begin the trial of another in order to take both past the regular term of court is unheard of, improper and illegal, and this one act alone convinces this court, no doubt, that Magness could not have had a fair and impartial trial at the January term of the court in Grenada county.

We come now to the application for change of venue. Certainly this application should have been granted. There was no conflict in the evidence. There was no dispute about the matter at all and on the evidence introduced to support the motion the change of venue should have been granted. But when this court looks to the entire record of the case, to the manner in which the case was tried, when it looks to the examination of the veniremen, there cannot be any possible doubt in the court's mind that it was little short of a crime to try Magness in Grenada county at the time he was tried. Everything points to a wild and fierce desire to convict this man of murder, regardless of law and regardless of justice. The application for a change of venue is a strong one. The testimony of the sheriff alone unsupported by the other witnesses entitled the defendant to a change. The sheriff of the county stated that he had to take the defendant to Hinds county jail in Jackson for safe-keeping; that he had to guard the jail at this term of the court; that he had heard of a mob being organized at that term of the court to lynch the prisoner. One witness testified that he had heard at least one hundred men at that term of the court express the opinion that Magness should be convicted and to the same effect some other witnesses testified. It is true that some of the witnesses for the defendant testified that Magness could have a fair and impartial trial in Grenada county, but this faith was based on their county pride. They believed that the men of Grenada county were as fair and impartial as of any other county. When the court remembers that this homicide occurred during a session of a circuit court of Grenada county, that men from all parts of the county were assembled at the county seat, that the case was under discussion constantly during the entire term of the court, that the news spread that the defendant had been tried before for homicide in this county and acquitted, and that this case was discussed in connection with the present case, it seems to us that the motion for a change of venue should have been instantly sustainded. We cite the familiar cases of Saffold v. State, 76 Miss. 258; Tennison v. State, 79 Miss. 708; Brown v. State, 83 Miss. 645; Anderson v. State, 92 Miss. 656.

J. T. Dunn, for appellant.

The first assignment of error is, did the court have the right to try this case at the time it did? We submit that it did not. Another murder case was sidetracked after it had begun and when the evidence was not quite concluded for no other reason than to start the Magness case, and then sidetracked this also in order to extend the term of the court and try two cases after the time fixed by law for the termination of that court. If this could be done in this instance, then a term of court could be continued indefinitely simply by impaneling the juries in the different cases before the time fixed by law for the court to expire, and endless confusion would result therefrom, and the reason for the terms of court as fixed by law would be done away with.

Should the change of venue have been granted? A strong case for the change was made by the witnesses, leaving out the sheriff, but with his testimony we submit that there could be no doubt. This testimony taken in the motion for a change of venue was as conclusive of a prejudgment of this man's case in the public mind as it was possible to be. Even this testimony demonstrated beyond peradventure that this man could not get that impartial trial guaranteed by the law to every citizen. There were threats of mob violence; there was the hurrying of the prisoner from Calhoun county to Jackson, not daring to carry him through Grenada county. The governor, as Magness passed back in custody of the sheriff, notified other sheriffs along the line and these other sheriffs, accompanied by other men of their counties, escorted the prisoner to Grenada. The whole county seemed to be infuriated and this was shown by the examination of the veniremen on their voir dire. To talk of an impartial trial, under such circumstances as this is mockery. This man had just arrived in Grenada on Tuesday evening of the second week of the court. He was immediately arraigned, his case set for announcement the next morning, before any announcement from him and before any announcement was possible from him, over the strenuous protest of his counsel, Mr. Hill, as shown by this record, stating to the court at the time that the man had just arrived, that the drawing of a special venire at that time might jeopardize some of the rights of the defendant, that the defendant could not be advised of the status of affairs at that time is apparent, yet in spite of these protests the venire was drawn on the simple announcement of "ready" by the state, and now the state, having forced this matter within less than twenty-four hours after the defendant had arrived in Grenada, after having been sped all over the state by the sheriff to keep him from mob violence, solemnly argues that the defendant was estopped to ask a change of venue after this. According to this view all that has to be done to estop the defendant from asking a change of venue is to "cut in" ahead of him before he announces what he intends to do or before he could know and move for a special venire. But in this case it was a denial of a constitutional right to a fair and impartial trial, because it was utterly impossible for that prejudgment, which was shown so manifestly throughout the trial and especially throughout the examination of the jurors who were to try this case, not to invade the jury box. That being true, that is that prejudgment was likely to invade the jury box, it was the duty of the court to grant the change of venue, because a fair and impartial trial under the circumstances was not likely.

Creekmore & Stone, for appellant.

The cases of Saffold v. State, 76 Miss. 258; Tennison v. State, 79 Miss. 708; Brown v. State, 83 Miss. 546 and Anderson v. State, 92, Miss. 656, are no stronger on their facts going to show prejudgment and ill will in the minds of the public than this case, and in truth this case is a much stronger one on its facts for a change of venue than either of those cases by reason of the remarkable showing of prejudgment of the case in the public mind as disclosed by examination of the jurors on their voir dire.

It was said by this court in Cheatam's case, 67 Miss. 355, that the question of error or no error as to a change of venue was not determinable alone from the standpoint occupied by the court in passing upon the question before the trial was commenced, but should be determined from the whole case including the examination of the jurors on their voire dire, etc. In that case a jury was selected from a venire of fifty men and the defendant did not exhaust his peremptory challenges. Look at this case according to the rule laid down in the Cheatham case and it will be apparent that a change of venue should have been granted.

In investigating the question of whether the court had the right to extend the term of court and try this case when he already had on trial the Caffey case, which could not be completed during the term as fixed by law, we have searched all the authorities at our command. We have been unable to find any case where a judge has undertaken to carry over more than one case. Indiana has a statute very much like ours on this subject, and in none of the cases construing this statute and we found some eight or ten cases construing it, had the court undertaken to carry over more than one case. Being unable to find any authorities directly in...