McInnis v. State

• Decision Date: 10 November 1947
• Docket Number: 36612.
• Court: Mississippi Supreme Court
• Parties: McINNIS v. STATE.

32 So.2d 444

202 Miss. 715

McINNIS v. STATE.

No. 36612.

Supreme Court of Mississippi

November 10, 1947

John G. Burkett and W. L. Mhoon, both of Jackson for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.

McGEHEE, Justice.

On the next day after the trial of a divorce suit between the appellant Henry R. McInnis and his wife Willie Mae McInnis and before the Court Reporter's notes therein had been transcribed, the Special Chancellor caused to be entered upon the minutes of the court an order reciting among other things: 'It appearing to the satisfaction of the court on the trial of this case that the complainant, Henry R McInnis, in his testimony has committed palpable perjury in the presence of the court in his effort to establish his alleged right to divorce on the ground of adultery and the court being of the opinion that the complainant should be punished therefor; * * *' and it was thereupon ordered that a warrant be issued for his arrest and that he be brought before the court on the following day 'for sentence at that time or to show cause why such sentence should not be imposed upon him for such offense'. Accordingly the warrant was issued and served, and it stated that the accused was 'to answer unto the State of Mississippi on a charge of palpable perjury'.

On the appearance of the accused in open court as commanded, the court dictated into the record at the hearing a statement to the effect that the foregoing steps had been taken in the proceeding then up for consideration and also that 'the testimony which the court considers as contempt in the presence of the court for false swearing is substantially this: The complainant charged in his bill of complaint as a ground for divorce, that the defendant was guilty of an act of adultery on January 9, 1946. That was the sole ground on which the divorce was sought from the defendant'. The court then recited in substance from recollection what the accused had testified to upon the trial for divorce and concluded by saying that 'the court finds that testimony to be so entirely incredible * * * as to convince the court beyond a reasonable doubt that the complainant McInnis was testifying falsely about the matter in this court in an effort to get a divorce to which he clearly was not entitled.' Thereupon the accused his counsel was afforded an opportunity to make any statement that they wished to make into the record, and with the result that a plea of not guilty was then entered.

The accused did not thereafter offer to give any testimony, but his counsel stated to the court that, under the statutes and the Constitution of the State, the court was without power to do other than bind the accused over under bond to await the action of the grand jury; that the said statutes and Constitution provide that no person can be tried for a felony such as false swearing or perjury, without first having been indicted by a grand jury of the county, and which had not been done.

It appears that the statute to which counsel referred is Section 2479, Code 1942, which reads as follows: 'Whenever it shall appear to any court that a witness or party who has been sworn or examined in any case, matter, or proceeding pending before the court, has testified in such manner as to induce a reasonable presumption that he has wilfully and corruptly testified falsely to some material point or matter, the court may immediately commit such party or witness, by an order of process for that purpose, to prison, to take bond or recognizance with sureties for his appearing and answering to an indictment for perjury.'

The court, however, was of the opinion that the procedure prescribed by this statute was not the exclusive remedy, and proceeded to adjudge the accused guilty of 'wilfully, knowingly and corruptly swearing falsely' in the trial of the said divorce suit and found that he was therefore, and by reason thereof, guilty of a wanton contempt of the court, and sentenced him to serve a sentence of ten days in the county jail. From that sentence he has taken this appeal.

A transcript of the testimony taken upon the trial of the divorce suit is contained in the record now before us and shows that the appellant had testified that he married the defendant in the divorce suit, Willie Mae McInnis, while in the army and returned to the service for a time before being discharged; that he was discharged in November 1945 and came back to Utica, Mississippi, where his wife was staying, and that he later came to Jackson where he claimed to have been making his home for about thirteen years; that he had been hearing rumors that his wife was unfaithful to him and had been riding around in her automobile with other men; that on January 9, 1946, while he was attending school at Jackson College, and living for the time being on Lynch Street, he saw his wife very late in the afternoon pass the campus of the college in an automobile with a man; that they were proceeding west, and that a few minutes after they passed he got in another automobile and followed them; that he overtook them about a half mile from the college where...