Price v. State, 27434

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ETHRIDGE, J.
• Citation: 120 So. 751,152 Miss. 625
• Parties: PRICE v. STATE. [*]
• Decision Date: 25 February 1929
• Docket Number: 27434

120 So. 751

152 Miss. 625

PRICE
v.
STATE. ^[*]

No. 27434

Supreme Court of Mississippi

February 25, 1929

Suggestion of Error Overruled March 11, 1929.

(In Banc.)

1. INDICTMENT AND INFORMATION. Court will not inquire into sufficiency of evidence before grand jury finding indictment. The court will not inquire into the sufficiency of the evidence before the grand jury to find an indictment.

2. INDICTMENT AND INFORMATION. Indictment resulting from unlawful influences operating on grand jury will be quashed; mere fact that petition was filed with grand jury or got into grand jury room requesting investigation is not of itself sufficient to quash indictment; petition filed with grand jury or finding its way into grand jury room must have improperly influenced grand jurors to warrant quashing indictment.

It is competent to show that unlawful influences operated upon the grand jury and caused the return of an indictment; if it sufficiently appears that it was of a harmful nature, and that the indictment was unlawfully procured, it will be quashed. But the mere fact that a petition was filed with the grand jury or that such petition got into the grand jury room requesting the grand jury to investigate a particular cause, and stating that the petitioners knew the facts and thought an indictment should be returned, is not, of itself, sufficient to quash the indictment. It must appear that the grand jurors were improperly influenced by such petition, or such facts must appear in evidence from which it appears with reasonable certainty that the grand jurors were so influenced. State v. Bacon, 77 Miss. 366, 27 So. 563.

3. INDICTMENT AND INFORMATION. One moving to quash indictment presented by grand jury has burden of proof; evidence held insufficient to require quashing of indictment on ground petition was filed with grand jury.

[152 Miss. 626]

In a motion to quash, the burden of the proof is upon the movant to sustain the allegations of the motion. The facts examined in this case, and held insufficient to sustain the motion.

4. CRIMINAL LAW. Homicide. Evidence tending to show killing was unlawful is admissible in prosecution for manslaughter; state, by returning indictment for manslaughter, elects to prosecute for that offense, though proof makes case of murder.

In an indictment for manslaughter, the issue is whether the killing was unlawful, and any evidence that reasonably tends to show that it was unlawful, otherwise pertinent, is admissible. The fact that such proof may make a case of murder is immaterial, as the state, by returning indictment for manslaughter, elects to prosecute for that offense, and is precluded from thereafter entering another prosecution, unless the judgment of conviction should be reversed.

SMITH, C. J., and GRIFFITH and ANDERSON, JJ., dissenting.

HON. T. E. PEGRA, Judge.

APPEAL from circuit court of Marshall county, HON. T. E. PEGRAM, Judge.

Owen Price was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Smith & Smith, for appellant.

The act of these unauthorized persons in presenting this petition to the grand jury falls squarely within the definition of the crime of embracery, a crime which the law has long seen fit to condemn as subversive of all hope of justice in our courts. This crime has been defined as follows: "Any attempt whatsoever, to corrupt or influence or instruct a jury, or in anyway to incline them to be more favorable to the one side than to the other, [152 Miss. 627] by money, promises, letters, threats, or persuasions, except only by the strength of the evidence, and the arguments of the counsel in open court, at the trial of the cause, is a proper act of embracery, whether the jurors, to whom such attempt is made give any verdict or not, or whether the verdict given be true or false." 1 Hawkins P. C., ch. 85, par. 1; Russel Crimes (1 Ed.), p. 486; State v. Brown, 95 N.C. 686. And it was said: "So soon as it is understood in the community that jurors or juries may be tampered with by outside parties with impunity, there is an end of an honest administration of the law, by jury trial, and the country will speedily drift into anarchy, or despotism . . ." In re Charge to Grand Jury, 30 F. Cas. No. 18215 Deady 657, 660. See, also, 20 C. J. 496; Commonwealth v. Kauffman, 1 Phil. (Pa.) 534, 538.

So well recognized are the evils which would flow from the practise of the methods adopted in procuring the indictment in this case, that, without discord, the courts hold that any such tampering with juries constitutes contempt of court and is properly punishable as such, all condemning such action unqualifiedly. This ruling is based upon reasons of the very soundest public policy. To tolerate such deliberate thrusts at the purity of the stream of justice would bring about the disintegration of the entire judicial system and undermine the integrity of all courts of law involving trial or investigation by jury. People v. Connors, 70 Cal. A. 315; Harwell v. State, 10 Lea (Tenn.) 544; 13 C. J. 23; U. S. v. Kilpatrick, 16 F. 765.

Our court in Welch v. State, 68 Miss. 341, 8 So. 673, has this to say of illegal influence brought to bear on grand juries and makes the following distinction between illegal or insufficient evidence and improper influences: "Illegal or insufficient evidence before the grand jury will not be inquired into, but the array may be excepted to for fraud; and improper influence to secure an indictment may be inquired into, and should be, when properly [152 Miss. 628] alleged. In vain the constitution protects against being proceeded against criminally, by information, for an indictable offense, except in cases mentioned, if grand juries are to be swayed by malice or prejudice or subjected to other influences than those recognized by law as legitimate and proper to guide them in their secret inquest. 'The recognition of such a mode of reaching grand juries (as was alleged in this case) would introduce a flood of evils disastrous to the purity of the administration of criminal justice and subversive of all public confidence in the action of these bodies.' It is true that one indicted is to be tried by a jury of his peers, and, if falsely accused, may expect a deliverance; but he is entitled to attack the prosecution in liminee, where it is procured by means unknown to and unsanctioned by law."

In Wilson v. State, 70 Miss. 595, 13 So. 225, this court said: "It is a serious mistake to suppose that the right of one accused or suspected of crime to the orderly and impartial administration of the law begins only after indictment. Immunity from prosecution for indictable offenses, except by presentment by the grand jury, is declared and preserved by the organic law of this and all other states; and though, by reason of the secrecy of the proceedings before that body, its action is seldom brought in review, it cannot be doubted that one whose acts are then the subject of investigation is as much entitled to the just, impartial, and unbiased judgment of that body as he is to that of the petit jury on his final trial nor that it is as essential, before the one body as the other, that private ill will and malevolence shall be excluded. The candid statement by Mr. Finlay that he went before the grand jury because he thought the appellant to be a great scoundrel, and therefore desired his indictment and conviction, presents the precise reason why he should not have gone before the jury, for it is just such influence that the law forbids. He was not a [152 Miss. 629] witness before that body, and was not an officer having any duty to perform, touching the matter under examination. His purpose must have been to advance, in some way, the prosecution, and this is precisely what the law prohibits to be done." Is not this just what happened in this case? The presentation of the petition to the grand jury, of persons who thought that the appellant should be indicted and tried and convicted, but who were not witnesses nor had they had legitimate function to perform in connection with the examination nor any legal connection with the case. Their purpose was to advance, in some way, the prosecution, and "this is precisely what the law prohibits to be done." Fuller v. State, 85 Miss. 199, 37 So. 749; Blau v. State, 82 Miss. 514, 34 So. 153. These views are reaffirmed and approved in Collier v. State, 104 Miss. 602, 61 So. 689, 45 L. R. A. (N. S.) 599.

In Callicoat v. State, 131 Miss. 169, 95 So. 318, the following doctrine was announced: "Where a person is slain by the defendant, and the slaying is admitted, but the defense is self-defense, then on an indictment for murder, and a conviction of manslaughter, where the testimony would sustain a verdict of guilty of murder, and where there are no elements of manslaughter involved, it is harmless error, of which the defendant cannot complain that a jury convicted him of manslaughter." All of the cases holding that a conviction of manslaughter would be upheld by the supreme court, although no element of that crime shown from the proof, are on appeals from conviction upon trial on indictment for murder. And in every case the court bases its decision upon the theory that the jury, which might have convicted, and would have been justified from the evidence in convicting him of murder, showed him compassion and returned an unwarranted verdict of guilty of manslaughter only, of which, being favorable to the accused, he might not be heard to complain. And in these cases, the further reason is advanced that, on indictment for murder, conviction [152 Miss. 630] of manslaughter and reversal where the state could not make out a case of manslaughter, that defendant could avoid any trial for murder by plea of former jeopardy, in that the conviction of manslaughter, upon the charge of the higher crime, amounted to acquittal by implication of the higher crime. In the...