Watson v. State

• Decision Date: 20 February 1933
• Docket Number: 30222
• Court: Mississippi Supreme Court
• Parties: WATSON v. STATE

146 So. 122

166 Miss. 194

WATSON v. STATE

No. 30222

Supreme Court of Mississippi

February 20, 1933

Division A

APPEAL from circuit court of Marion county HON. J. Q. LANGSTON Judge.

Mrs. Sallie Watson was convicted of robbery, and she appeals. Reversed and remanded.

Reversed and remanded.

Currie & Currie, of Hattiesburg, and T. B. Davis of Columbia, for appellant.

Looking through all of the testimony and picking up every scrap of it and construing it against appellant with the greatest force possible what is it that she has said or done which would make her a party to the robbery or would aid, abet, incite, or in any way assist or urge the parties guilty of this robbery. If, for the sake of argument, we should assume that she knew the crime was contemplated and was a well wisher to it and actually intended to assist in its commission, still this would not make her guilty of being an accessory before the fact.

Mere presence, even with the intention of assisting in the commission of a crime cannot be said to have incited, encouraged, or aided the perpetrator thereof, unless the intention to assist was in some way communicated to him. The law does not punish intent which is without influence on an act.

Crawford v. State, 97 So. 534.

Before Mrs. Watson could be guilty of being an accessory before the fact there must have been some understanding between the principals and herself, she must have had an intention to aid, assist, or encourage them before the commission of the crime.

Williams v. State, 129 Miss. 271.

There are several things that must concur in order to justify the conviction of one as an accessory before the fact. (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime.

Gerdine v. State, 64 Miss. 798; 16 C. J., page 200, par. 301.

Currie & Currie, of Hattiesburg, for appellant.

Section 473, Chapter 12, Volume 1, Mississippi Code of 1930 Annotated, fixes the regular terms of the circuit court of Marion county, Mississippi, and no regular term of said court can be held at any time or place other than is fixed by the statute itself.

Section 732, Mississippi Code of 1930 Annotated applies to and provides for the extension of regular terms of courts only, and its provisions have no application whatsoever to special terms of court called under the provisions of section 731, Mississippi Code 1930 Annotated.

Section 732 provides that a court may continue in session to finish a case began during the legal term, without an order spread on its minutes.

But if the unfinished business of the court at the expiration of the term fixed by law is such that the court finds it advantageous or proper to continue the term in session for the completion of such business, it is necessary to make and enter on the minutes of the court an order extending such regular term before the expiration thereof as fixed by law.

In the case at bar there was actually no court in existence on said 7th day of March, A. D., 1932, when the appellant was unlawfully forced to trial, for the reason that there was absolutely no order made and entered on the minutes of said court and signed by the Honorable J. Q. Langston, the judge thereof, during and before the expiration of the said two weeks special term originally called by him.

There were no minutes of said court in legal existence extending said special term prior to the expiration thereof, at midnight on Saturday, March 5th, A. D., 1932, as was conclusively shown by the exhibition of said minute book and the testimony offered, and under the law the Honorable J. Q. Langston, the judge of said court, had no authority after midnight on Saturday, March 5th, A. D. 1932, to sign an order on the minutes of said court extending said term, and his act in so doing was a nullity.

The life and existence of said special term of court depended upon the legality and validity of the minutes showing its existence, and the minutes of said court were not signed as required by the statutes, and oral testimony, documentary evidence, and every sort of evidence was competent to prove the fact that there were, no valid minutes of any such court.

The contention of the appellant was that there were no minutes then in existence signed by the judge extending said special term of court and that without such minutes signed by said judge there could be and was no court in existence or in session.

Hammond-Gregg Co. v. Bailey, 119 Miss. 72, 80. So. 489; Perry v. State, 154 Miss. 459, 122 So. 744.

Section 750, Mississippi Code 1930, Annotated, is mandatory and required that the minutes of said special term be drawn up, read and signed by the court in open court before final adjournment, and that in the absence of an order drawn up, entered on the minutes of said court, read and signed by the court during the existence of said special term, and before the final adjournment thereof by the operation of law, at midnight on Saturday, March 5th, 1932, was absolutely no special term of said circuit court of said county in existence on Monday, March 7th, A. D. 1932, when the appellant was placed on trial over her protest and against her objections.

Jones v. Wells, 62 Miss. 183; Childress v. Corley, 92 Miss. 571, 46 So. 164; 4 Wigmore on Evidence, 3457; 1 Freeman on Judgments, pars. 62, 107; Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489.

The lower court committed gross error, which was highly prejudicial to the appellant in refusing to permit her to introduce oral and documentary evidence to prove that as a matter of fact the minutes of said special term of court had not been signed by said judge of said court, and did not bear his signature on the morning of Monday, March 7th, A. D., 1932, when she was being put on trial over her objections and against her protests.

The statements made by the appellant as testified to by these witnesses were obtained by these witnesses by threats, intimidation and at the points of loaded pistols and double barrel shot guns, and were not free and voluntary, and were not freely and voluntarily made, and were not competent.

Without any warrant for the arrest of the appellant and without any information that she had robbed the bank, and without any information that the robbers of the bank were concealed under the rumble seat in the automobile in which she was riding, and without any warrant for the seizure and search of the automobile, these officers of the law detained the appellant on the public highway and by force and violence broke open the rumble seat and searched the automobile.

As a result of this unlawful seizure and search certain suit cases were discovered and these suit cases and the contents thereof were all used in evidence against the, appellant.

The only authority we know of for a seizure and search without a warrant in this state is Section 1976, Mississippi Code 1930 Annotated, and that statute applies exclusively to the search and seizure of vehicles in which the, officer making the seizure and search believes and has good reason to believe that intoxicating liquor is being unlawfully transported.

Cutrer v. State, 161. Miss. 710, 138 So. 343; Polk v. State, 142 So. 480.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is quite as well settled that a conspiracy may be proved, like other controverted facts, by the acts of parties or by circumstances, as well as their agreement.

Osborne v. State, 99 Miss. 410; Street v. State, 43 Miss. 2; Pickett v. State, 139 Miss. 529, 104 So. 529; Eaton v. State, 140 So. 729; Boutwell v. State, 143 So. 479.

There is no showing nor an attempt to show that the minutes of the session of the court were or were not signed at the conclusion of the third week.

There is no question raised in this case as to the legality of the special term, so that for the purpose of this argument it is assumed that the special term was duly and regularly called and organized under the provisions of Section 731, of the Code of 1930.

This statute does not limit the extension of a term of court to regular terms only. In other words, under this statute, there can be no ending of a term when the trial is entered upon and not completed at end of term fixed by law until the case being tried is completed.

Whitten v. State, 61 Miss. 717; Helm v. State, 66. Miss. 537, 6 So. 322; Magness v. State, 103 Miss. 30, 60 So. 8; Pittman v. State. 147 Miss. 593, 113 So. 348.

The extended term is not a new term of court, separate and apart from the term continued.

Perry v. State, 154 Miss. 459, 122 So. 744.

Section 750 of the Code of 1930 provides that, the clerk of the court shall enter the proceedings on the minutes on a day-to-day basis, if practicable. It does not require the minutes to be signed by the trial judge from day to day, but the inference is that they may be signed at any time during the term as and when read and corrected. The only absolute requirement is that "on the last day of the term, the minutes shall be drawn up, read, and signed on the same day, or before the adjournment of the court."

Argued orally by Neill Currie and T. B. Davis, for appellant and W. D. Conn, Jr., for the state.

OPINION

Cook, J.

The appellant, Mrs. Sallie Watson, alias Mrs. T. C. Watson, alias Mrs. Sallie Oglesby, alias Mrs. Cole Elbert Oglesby, alias Mrs. Sallie Wooten, was indicted on a charge of robbing the Columbia Bank, a banking corporation domiciled at Columbia in Marion county, Miss., in conjunction with N. A. Dickson and Cole Elbert Oglesby, alias T. C. Watson, alias J. W. Wooten, alias C. Wooten. She was tried at a special term of the circuit court...