State v. Miller

• Decision Date: 31 December 1878
• Parties: State of Tennessee ex rel. v. R. L. Miller.
• Court: Tennessee Supreme Court

69 Tenn. 596

State of Tennessee ex rel.

v.R. L. Miller.

Supreme Court of Tennessee.

December Term, 1878.

FROM DAVIDSON.

Appeal in error from the Circuit Court of Davidson County. F. T. REID, J.

COLYAR & SON for The State.

GUILD and DODD for Miller.

FREEMAN, J., delivered the opinion of the Court.

This is a proceeding by mandamus, asking the Circuit Judge of Davidson county to cause defendant, a justice of the peace, to examine the witnesses, on a charge of murder, reduce their testimony to writing, have it signed, and take the recognizance of material witnesses, to appear for the State on further prosecution of the case.

The facts of the case are, that two warrants in the name of the State had heretofore issued against Samuel Langham, charging him with murder, by killing two men, to-wit: McAndrews and Julius Keister. The accused was arrested and brought before defendant, who had issued the warrants, who associated with him two other justices for the purpose of trial. On the arraignment of the prisoner for trial, he by counsel and in person waived a regular examination or investigation of the charges against him, and further stated he did not desire to make application for bail, and requested to be committed to jail, and be there held in custody to appear before the next term of the Criminal Court of Davidson county, on the charge of murder.

Thereupon the attorneys for the prosecution demanded that the testimony should be heard by the magistrates, and the same should be reduced to writing, as required by our statutes. After argument of the counsel on both sides, the court, or justices, were of opinion that the defendant having waived an investigation and demanded to be re-committed to jail, without bail, was entitled to do so. Therefore they adjudged said Langham should be remanded to jail, to await his trial at the next term of the Davidson county Criminal Court, to-wit: at January term, 1879--they entering the proper judgment, that the offense of murder had been committed, and there was probable cause to believe the defendant guilty thereof, etc.--and the papers were regularly filed with the clerk of the Criminal Court.

The question is, first, Was this a correct practice? and secondly, Whether the remedy by mandamus is proper and effective to correct the error, if any, on the facts thus stated?

The sections of the Code bearing on this question are substantially as follows: Section 5056, under title “Mode of Examination,” provides, at the examination the magistrate shall examine the witnesses for the prosecution on oath in the presence of the defendant, and such other witnesses as may be produced by the defendant. By the next section, it is enacted, after the examination of the witnesses for the State is closed, the magistrate shall inform the defendant that it is his right to make a statement in reference to the charge made against him, or that he may waive the same; and such waiver can not be used against him on the examination before the magistrate or on trial. If the accused choose to make such statement, the same is to be taken down in writing, read over to him, and signed by him, or if he refuses to sign it, his reasons for such refusal stated. Then follows the questions that may be put to him. After the waiver of defendant of his right to make a statement, or after he has made it, his witnesses, if he produce any, may be sworn and examined. By section 5062, it is there provided, that the evidence of the witnesses examined shall be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively. Under a previous chapter of the Code, we find by section 5017, that no person can be committed to prison for any criminal matter until examination thereof be first had before some magistrate. By section 5018, the magistrate is required to reduce the examination of the accused to writing, if he submits to an examination, and also all the evidence adduced on both sides; and he is authorized to discharge, bail or commit the accused, and to take all necessary recognizances to enforce the appearance of the defendant, the prosecutor or witnesses, at the proper court.

Upon these provisions of the Code, it is apparent they are intended and do regulate the trial of a case of the kind now before us, on the assumption, probably, that in every case there would be a contest; that a person accused would not go to prison, or be held to bail without having a case made out against him, justifying it by competent testimony.

In that event, the regulations are simple and easy to be understood in connection with other provisions of the Code. The issuance of the warrant of arrest is provided for, by which the party is to be brought before the magistrate, opportunity to secure counsel, continuances, and then the mode of conducting before the court the trial, investigation, or “examination,” as it is called, of the case, or charge on which the party has been arrested, with a view to his discharge, or to further proceedings, in all felony cases, before a court having jurisdiction; finally to determine upon the guilt or innocence of the accused. The action of the magistrate on this trial is but preliminary to this final proceeding, and we may add, in several aspects in aid of, and connected with, the future proceedings provided for by our law.

I can not assent to the argument of the defendant in this case, that section 5018, providing that the magistrate shall reduce the examination of the accused to writing, if he submits to an examination, refers to the proceedings at the trial, and that he can waive a trial by virtue of this section, and is affirmatively given the right by this section to waive a trial before the magistrate, and then in exercise of a right under the statute, prevent a trial, or the reduction of the testimony to writing by the magistrate.

Taken in connection with the other sections of the Code more specifically regulating this subject, I think it clear, this refers alone to the personal examination or interrogatories which the magistrate may make, or put to the accused with his consent, as provided by section 5059 and sub-section, and which the next section provides he may waive, or rather says so by implication, by saying “after waiver, etc., witnesses may be examined for the defendant.”

This is shown by the further provision in section 5018, that the court shall not only reduce the examination of the accused, if he submits to one, to writing, but also the evidence adduced on both sides--thus distinguishing between examination of the accused and his trial; because if tried, whether he submits to answer the interrogatories or not, or makes a statement as provided for, still the magistrate must reduce the examination of the witnesses introduced to writing. A trial may be had as well without, as with an examination of the accused, or statement from him. In addition, the latter part of the section goes on to provide, the magistrate is authorized to “discharge, bail, commit the accused, and to take all recognizances to enforce the appearance of defendant, prosecutor or witnesses at the proper court.” If defendant can waive an examination and prevent a trial, or examination of his case, it is impossible all these requirements shall be properly met by the magistrate. He can not discharge--he has not investigated. He can not bail in cases capital, for he must see the proof to be “evident or presumption great,” in order to decide the right to bail in such cases. He can not take recognizance of witnesses, as provided by this and other sections, for he shall take from each material witness...