Sanders v. State

• Citation: 239 Miss. 874,85 A.L.R.2d 481,125 So.2d 923
• Decision Date: 16 January 1961
• Docket Number: No. 41553,41553
• Parties: , 85 A.L.R.2d 481 Willie SANDERS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 923

125 So.2d 923

239 Miss. 874, 85 A.L.R.2d 481

Willie SANDERS v. STATE of Mississippi.

No. 41553.

Supreme Court of Mississippi.

Jan. 16, 1961.

Prewitt & Bullard, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

LEE, Justice.

Willie Sanders, indicted for murder and convicted of manslaughter, in the Circuit Court of Warren County, appealed from the judgment which sentenced him to serve a term of twelve years in the state penitentiary.

This is the second appearance of this cause here. In the first instance, the jury found him guilty of manslaughter, and he was sentenced to serve a term of ten years in the state penitentiary. Because of error on the part of the trial court in overruling his motion for the production of a tape recording of his confession, the cause was reversed and remanded for a new trial. Sanders v. State, 237 Miss. 772, 115 So.2d 145.

A retrial of the cause occurred during the week of September 14, 1959, and again resulted in a conviction of manslaughter. During the trial, the defendant offered as witnesses on the issue of his sanity, Lillian Sanders and Curdestine Wildee, his mother and sister. The court sustained the objections of the State to the introduction of that testimony. Subsequently, the court, after making some research, concluded that he had committed prejudicial error in excluding the testimony of these two witnesses. No sentence was imposed on that verdict. Several days later, the court conferred with counsel for the State and the defendant, at which time his counsel indicated an intention to file a motion for a new trial, but said that he had not had time to do so. At any rate, no motion was filed. The court, being of the opinion that the verdict, under the circumstances, should not be permitted to stand, of his own motion, set it aside and awarded a new trial. Thereafter, during the week beginning on December 28, 1959, a jury was empaneled to try the defendant. After the selection had been completed, the defendant, in the absence of the jury, moved the court 'to dismiss the above-styled and numbered indictment by reason that the court by ordering a new trial ex mero motu has divested itself of jurisdiction * * * and pleads double jeopardy in bar of further trial' therein. The State thereupon moved the court 'to set aside the order granting a new trial * * * and to reinstate the verdict of the jury, and judgment and sentence entered thereon.' The court overruled these motions and detailed the facts in connection with what had transpired, as set forth in the preceding part of this paragraph.

At the conclusion of the State's case, the court overruled the defendant's motion to exclude such evidence and direct a verdict of not guilty as to both murder and manslaughter. In this trial, the defendant did not introduce Curdestine Wildee as a witness, but did offer Lillian Sanders and another.

At the conclusion of the evidence, the court again refused the request of the defendant for peremptory instruction. The cause was submitted to the jury which found the defendant guilty of manslaughter, and he was subsequently sentenced to a term of twelve years in the state penitentiary.

Only two alleged errors have been assigned, namely, the refusal of the court to sustain the motion of former jeopardy, and the increase in the sentence from ten years in the first trial to twelve years in the third. The appellant contends that the lower court divested itself of jurisdiction to try him a third time when the court, on its own motion, set aside the verdict of guilty on the second trial and ordered a new trial.

It is clearly settled that a court of general jurisdiction, in the absence of a statute to the contrary, has inherent power to grant a new trial, on its own motion, in civil cases. 66 C.J.S. New Trial Sec. 115, p. 328; 39 Am.Jur., New Trial, Section 4, p. 34.

In 39 Am.Jur., New Trial, Section 11, p. 38, it is said: 'The power of a court to order a new trial of its own motion is held to exist in criminal prosecutions as well as in civil suits. In the exercise of this power, the essential difference between civil and criminal cases is that the court, in a criminal proceeding, must not place an additional burden on the defendant. It has been held that the court may not set aside a verdict of conviction without the consent of the accused, and that a plea of former jeopardy must be sustained upon a second trial which has been awarded on the court's own motion.

'The trial judge, according to some of the decisions, has no authority of his own motion to grant a new trial in a criminal proceeding, and unless the accused makes application therefor, the court must proceed to impose sentence.'

A consideration of some of the cases will demonstrate the accuracy of the above text in pointing out the conflict in the authorities in regard to the power of the court to grant new trials on its own motion in criminal cases.

In Louisiana it has been held that the trial court has no authority to award a new trial on its own motion. State v. Williams, 38 La.Ann. 960, 961; De Vall v. De Vall, 60 Or. 493, 118 P. 843, 120 P. 13, 40 L.R.A.,N.S., 294; State v. Whitbeck, 134 La. 812, 64 So. 759, 52 L.R.A.,N.S., 883.

In California it has been held that, since the granting of a new trial is statutory, it cannot be awarded without a motion therefor. People v. Skoff, 131 Cal.App. 235, 21 P.2d 118; People v. Rothrock, 8 Cal.2d 21, 63 P.2d 807.

In Crymes v. State, 1935, 52 Ga.App. 195, 182 S.E. 856, a Georgia case, it was held that, inasmuch as the defendant expressly denied any intention to apply for a new trial, the trial judge erred in awarding one.

In State v. Snyder, 1889, 98 Mo. 555, 12 S.W. 369, 371, a Missouri case, the jury found the defendant guilty of an assault with intent to ravish a female child of the age of eleven years and assessed his punishment at six months in the county jail. The trial court, of its own motion, set aside the verdict and entered an order forever disqualifying the jurors, who composed the panel, from sitting as jurors in that court. Subsequently the defendant was put to trial a second time. He pled autrefois convict, but the plea was ignored by the court. The jury brought in a verdict of guilty and fixed the punishment at imprisonment in the penitentiary for five years. On appeal, the Supreme Court, after the citation of authorities, said: 'Viewed in the light of the authorities cited, and of sound reason, there was no justification or excuse for the course pursued by the trial court in failing to enter judgment upon the first verdict, whether we follow the practice at common law,...