McPherson v. State

• Decision Date: 31 January 1921
• Docket Number: 21351
• Citation: 124 Miss. 361,86 So. 854
• Court: Mississippi Supreme Court
• Parties: MCPHERSON v. STATE

86 So. 854

124 Miss. 361

MCPHERSON v. STATE

No. 21351

Supreme Court of Mississippi

January 31, 1921

1. CRIMINAL LAW. Court may "enter" order for view by making it and leaving ministerial acts to clerk.

Under the provision of section 2720, Code 1906 (Hemingway's Code, section 2213), the court is authorized to repair to the place at which any material fact in the case on trial occurred, after the judge thereof has discharged the judicial function of making the order therefor, leaving the ministerial act of spreading the order on the minutes to be afterwards performed by the clerk.

2. CRIMINAL LAW. Admissibility of evidence not considered in absence of objection below.

An objection to the admission of evidence made in the supreme court for the first time will not be considered.

3. CRIMINAL LAW. Error in admission of testimony cured by subsequent admission of fact.

An error in the admission of testimony is cured if the party affected thereby afterwards admits the fact which it tends to establish.

HON. D E. BEAMS, Judge.

APPEAL from circuit court of Leflore county, HON. D. E. BEAMS Judge.

Peggy McPherson was convicted of murder, and she appeals. Affirmed.

See also, 83 So. 684.

Affirmed.

Monroe McClurg, for appellant.

The distinguished assistant attorney-general, Mr. Hemingway, points out in his brief on behalf of the state that the first point for decision is: "The fact that the court failed to enter the order for view of the premises before leaving the courtroom."

That is our first assignment of error. While counsel for the state postpones his argument of that assignment until he has argued other assignments, it is preferred here to briefly answer his defense of the first error assigned. He presents the proposition tersely by inquiring whether it is a "jurisdictional requirement," and secondarily whether the order for the view ought to have been entered before the view, or whether it could have been omitted then and entered at any time during the trial.

There is no dispute found in the record of the fact that the order was not entered before the view, nor at any time during the trial. It was not entered until the trial was over, verdict of guilty returned, the jury discharged and the defendant sentenced. The order appeared on the minutes for the first time the next morning after the trial, and then strangely enough interloped in negligent recital of the life sentence.

The extremity to which the state is driven by this assignment is disclosed by the labored effort of its able counsel first, to justify the error by certain facts that transpired during the view, and next by the evidently painful effort to justify it by decisions of this honorable court on the errors and omissions of justices of the peace, who of course, have never had any jurisdiction of felonies, save that of commitment. Indeed, so hard pressed is the state's able counsel, that at page 8 of his brief, he cites and quotes as his strongest authority, the civil controversy between Maurice Winner and Edward C. Williams. Landlord and Tenant, 82 Miss. 669, (672), in which this court declined to disturb the finding of the circuit judge on a question of fact on the hearing of a motion to dismiss an appeal from a judgment by a justice of the peace. That proposition might be applicable in defense of counsel's clerk in erroneously noting that opinion was on page "693" of the report instead of being on page 669, but it is in extremis of argument to urge that the life of a human being is to be tried by such weak and wavering balance. And, if it were possible to further disclose the embarrassment of counsel, and it is meant to criticise him only for his energy, zeal and ability to make the most of his case in proper way, he is finally forced by the record before him to say:

"The court, in the instant case, must have said something in response to the motion of the district attorney. That something did find a place on the minutes. The court made a pencil memorandum on his docket after the return from the view." He meant to say, that it found a pencil noted place on his docket after a colloquy between the court and the district attorney.

Well, what was that "something said?" It was the motion of defendant's counsel who had timely enough objected to the view when about to be ordered, then by moving the court to enter a mistrial because of the burlesque view. Nor is that all. How come the justice of the peace "pencil memorandum" entered on the judge's trial docket? At the urgency and persistency of the district attorney who was writting under his own and the court's fatal error; he felt the sting of the motion.

It is now most confidently believed, not urged, for urgency is not needed, that this court will not accept the excuse for the district attorney and the trial judge made by the state here as a sufficient substitute for a solemn statute which not only requires the pre-entry of the order, granted over the objection of the defendant, but in truth, the order should have been first spread upon the minutes. The entry was not a mere ministerial act as insisted by the state, but was essentially a jurisdictional requirement as hereinafter pointed out.

Wm. Hemingway, for the state.

Appellant's brief correctly states what happened so it will not be necessary to again repeat the view of the scene of the killing, which is provided for in Code of 1906, section 2720 (Hemingway's Code, 2213). The question for decision is: Is this a jurisdictional requirement? And could it be entered any time during the day upon the minutes of the court? The order ought to have been entered; the question is, when?

The statute under review here is Code of 1906, section 2720 (Hemingway's Code, 2212). The motion of the district attorney is set out on page 50. Page 51 shows the following: "The following evidence was taken at the scene of the alleged homicide in the presence of the court and jury and other court officials, to-wit:"

Page 56 shows the following: "The court and jury here returned to the courtroom and Mr. Joe Williams was recalled by the defendant for further cross examination and testified as follows:"

When the state rested, the defense promptly made their motion raising the point of the failure to enter proper order. It is conceded that no entry was made on the docket of the court or the minutes of the clerk until after this motion by the defendant. The record shows that the district attorney made the motion for the view, and that the proceedings were had at the scene of the homicide. There must have been some order or permission of the court to have gone or the proceedings would not have been had. This brings us to the consideration of the words, "after such order is entered, etc." It will be noted that this statute provides that the court shall remain in session, the necessity of the statute is to permit court to be held outside of the courthouse. In the copying of the minutes, which are in the nature of a journal, of proceedings, the rule that the law recognizes no part of the day would be good in this case. The clerk, if he had the minutes ready for the signature of the judge had done all he was required to do.

In Lunenberger v. State, 74 Miss. 379, the justice of the peace made a notation of his judgment but did not actually enter it up for two days after it was rendered. This was not considered as reversible error. The court is referred to the special line of reasoning. Evidently court had adjourned and the clerical part was all that was necessary. See, also, oil the same point Holly v. State, 74 Miss. 878. But a still stronger case is Winner v. Williams, 82 Miss 693. In this case the justice of the peace did not approve the bond for appeal until after the five days allowed for appeal had expired. It had been shown that the bond was filled in time. This was a civil case and in it the court said: "It was the duty of the circuit court to see that the law was specifically complied with, and rights of litigants are not prejudiced by...