Powers v. State

• Citation: 83 Miss. 691,36 So. 6
• Court: United States State Supreme Court of Mississippi
• Decision Date: 22 February 1904
• Parties: MALCOLM F. POWERS v. STATE OF MISSISSIPPI

36 So. 6

83 Miss. 691

MALCOLM F. POWERS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 22, 1904

FROM the circuit court of, first district, Panola county. HON. L F. RAINWATER, Special Judge.

Powers appellant, was indicted and tried for the murder of one Mills, convicted of manslaughter, and appealed to the supreme court, where the conviction was reversed and a new trial awarded. See Powers v. State, 74 Miss. 777. Upon remand of the case to the court below he was again tried for manslaughter and again convicted of said crime and appealed (a second time) to the supreme court. The facts on the second appeal on which the decision is based are stated in the opinion of the court.

Affirmed.

Leland L. Pearson, for appellant.

The indictment here is a statutory indictment for murder. The appellant at a former term was convicted of manslaughter. This is an acquitttal of murder. The conviction of manslaughter being reversed on a former appeal, of course there could be no further trial for murder. In order that the case might go to a jury on a clearly defined issue, the appellant, defendant below, prepared and filed at the March term, 1902, his special plea. There is no record of any disposition of this plea until after the state had introduced all its evidence on the trial and from which this appeal is taken. After the state had introduced all its evidence the court permitted the state to file its demurrer to the special plea and then, without hearing any evidence, orders a judgment nunc pro tunc, and proceeded with the trial. Thus the defendant is put on trial before a jury for murder after he has been acquitted of murder; and so far as this record shows, the jury had no intimation that he was being tried for manslaughter only until all the evidence is heard, and the instructions of the court are given.

Even if the court's action in sustaining the demurrer to the special plea was correct, there is certainly no warrant for the entry of a judgement nunc pro tunc. If the state should have been permitted to "mend" its hold by filing its demurrer, it should have been required to withdraw the case from the jury and take a venire de novo; so that the defendant might have had the state's proof heard by a jury who knew for what he was being tried. But it is submitted to the court that it was error for the court to sustain the state's demurrer to defendant's special plea. He certainly could be tried only for manslaughter and he had the right to go to the jury with that issue clearly defined. It was not fair to him to go through the trial on an indictment for murder of which he had been acquitted, and then at the close of the trial have the jury instructed that he was on trial for manslaughter only and that they could not convict him of murder. Lax as may be our system of criminal pleadings, such injustice as this should not be permitted. The state should have been required to reply to the special plea so that the issue might have been made up. The special plea was not demurrable, it stated a good defense to the crime charged, and if the state desired to put the defendant on trial for a lesser offense, it ought to have been required to do so.

The court below erred in overruling defendant's motion to exclude the state's testimony, for the reason that if taken as true the killing must necessarily have been murder or justifiable homicide under the facts disclosed.

Where a man has once been tried for murder under a state of facts which unquestionably discloses a case of murder or justifiable homicide, he ought not again be put upon his trial under the same indictment for murder; but if he can be again tried on the same indictment, and can only be convicted of manslaughter, will not the state's evidence, when all in, which shows a case of murder or justifiable homicide, be excluded upon the motion of defendant for the reason that the finding of a verdict of manslaughter would not only not be responsive to the proof but in fact and in law contrary to the evidence.

On the first trial the defendant was properly triable for murder and any constituent offense necessarily included in the indictment; while in the present case the defendant could not be convicted of murder, and should not be tried for murder nor could this issue be presented to the jury. He had been acquitted of murder and could never again be tried or convicted of murder arising out of this killing. It therefore cannot be said in this trial, as in the first trial, that the jury would have been warranted in convicting him of murder under the proof, and that they being so warranted, did in fact only find a verdict of manslaughter is that of which the defendant could not complain.

The sole possible issue upon going to trial in this the second case is whether or not the defendant is guilty of manslaughter in the killing of Mills.

What sort of logic is it by which we may reason to such a result as this? The defendant cannot be found guilty of murder nor be tried for murder, nor is this issue to be either presented or submitted to the jury; and yet the jury, upon hearing the evidence, which established murder or nothing may in fact believe him guilty of murder under the evidence, and so believing convict him of manslaughter, contrary to all evidence.

The failure of the court to set aside the verdict because of improper argument of the prosecuting attorneys is fatal error. The better rule is announced in Martin v State, 63 Miss. 505, where it is said it is the duty of the presiding judge to interfere of his own motion to prevent such a breach of privilege on the part of counsel, and if he fails to do so, and the abuse of privilege is of such character as to produce the conviction that injustice resulted therefrom, the duty of this court is to apply the corrective by awarding a new trial.

By reference to the record it will appear that the minutes of the trial court showed an "agreement between counsel in open court" as being the authority under which the special judge sat in this case. Does such agreement make of the attorney agreed upon a legally qualified special judge. We contend that it does not. The provision of sec. 165 of the constitution of 1890 extends to civil cases only, as will necessarily appear by reference to its verbage and grammatical construction. Peter v. State, 6 How. (Miss.), 326; Butler v. State, 57 Miss. 630; Wright v. Boone, 2 Greene, 485; Smith v. Frisbie, 7 Iowa 486.

Our statute. Code 1892, § 920, does extend the provision to criminal cases, but for reasons stated in the above authority, and because sec. 165 of the constitution of 1890 is certainly by its terms applicable only to civil cases, this statute is unconstitutional and void so far as it seeks to embrace criminal prosecutions. It therefore follows that if the special judge sat by agreement of parties only the proceedings were a nullity. It equally follows that any, as well as all, acts done by him were void.

Again, the constitution, sec. 165, provides for the commissioning of a special judge for a term or in a case where the attorneys engaged therein do not agree upon a member of the bar to preside in his place. So, unless this was a case where the attorneys did not so agree, then the commission was improvidently and illegally issued, and not only does not constitute any color of right in the appointee to preside but all acts and proceedings thereunder are absolutely void. It therefore further follows that outside the fact that it is true, generally speaking, that a special judge in a criminal case can never be considered a de facto officer, that in this case he could not become such for the further reason that he entered upon the discharge of his duties without any color of right. Dabney v. Hudson, 68 Miss. 292. But in either, whether sitting as special judge by agreement or by appointment, he did not at any time take the oath of office, as provided by sec. 155 of the constitution of 1890, which is at last the indispensible qualification that authorizes him to enter upon the duties of judge and without which the whole proceeding in the case before him must in law be held to be null and void. As to the necessity of taking the oath and the effect of not taking it see Kennedy v. State, 53 Ind. 542; Herbster v. State, 80 Ind. 484; Rudd v. Woolfolk, 4 Bush. (Ky.), 555; Sloan v. Sloan, 2 Metc. (Ky.), 339; Grant v. Holmes, 75 Mo. 109; Bank v. Graham, 147 Mo. 250; State v. Bishop, 22 Mo. App., 435; State v. French, 47 Mo. App., 474; Thompson v. State, 9 Tex. App., 649; Smith v. State, 24 Tex. App., 290.

J. N. Flowers, assistant attorney general, for appellee.

A plea in abatement had been filed to the indictment at a former term of the court and had been disposed of, but the minutes of the court did not show the disposition of it. After the testimony for the state was all in, the defendant moved to exclude the same because this special plea was still pending. The court heard the argument of counsel and declared that it had been disposed of at a former term, and directed the clerk to enter an order sustaining a demurrer to the pies nunc pro tunc. The facts upon which the court acted in ruling upon the motion to exclude do not appear in the record, and it will be presumed here that his action was right.

The special plea simply set up the fact that at a former term defendant had been convicted of manslaughter under the same indictment and that he could not therefore be tried again on this indictment.

By going to trial on the indictment the defendant waived his right to have a special plea heard. In Dyer v State, 79 Tenn. 509, that court held that a plea in abatement was properly struck out on motion of the state's attorney after a plea of not guilty had been entered and the trial...