Willis v. State

• Decision Date: 09 April 1917
• Docket Number: 19618
• Citation: 74 So. 677,113 Miss. 838
• Court: Mississippi Supreme Court
• Parties: WILLIS v. STATE

74 So. 677

113 Miss. 838

WILLIS v. STATE

No. 19618

Supreme Court of Mississippi

April 9, 1917

APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.

Oscar Willis was convicted of assault with intent to kill and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Robert L. Bullard, for appellant.

Does this indictment charge any offense as it stands without supplying any word? No one, no court has ever, or will ever contend that it does and it could make no difference whether the omission was by mistake or design. And it is not, as contended, a grammatical error--it is one of the substance. Then if something is to be supplied who is to determine what that shall be? Shall it be one word or more? This, as long as the Constitution stands cannot ever be done by the court. "But," says the state, "it is a technicality." "True," say I, "so is the rule that requires that the evidence must exclude every reasonable doubt." "My technicality," he says "is immaterial and ought to be disregarded."

If so, who is to determine that? The power that may determine that one is nonessential, and abrogates it, may also do the same for the others, and all others. Suppose the court should say that the word "did, " or similar words, may be omitted? Then you may hold that the words, "with intent," "with a deadly weapon," "attempt to shoot," or any other may be omitted. In fine you may as well hold that an indictment may be omitted, and then that the evidence may merely preponderate, etc. It necessarily follows that if the court has the power to say that one legal principal is nonessential you have the like power to say that any other, or all others are equally so. How refreshing, in this connection are those words of, "the beloved of us all," the lamented Calhoun in Hawkins v. Mangum, and how pertinent here:

"This is the mandate of the sovereign people in convention, and it must be obeyed by the courts, whether the consequence enshroud us in darkness or flood us in light."

But they would have us think that we are fallen upon more enlightened days, and that jurists like Calhoun, Woods, Cooper, Arnold, Campbell, and a host of others, who had too much reverence and respect for the law as it is given to us to lay violent hands upon it, are back numbers.

Now let it be understood that this is no attack upon any rule or principal announced by this court. They are all "righteous in my eyes." There is a vast difference between the abrogation of a legal right, or the denial of it, and a holding that the misapplication of it, or other legal principal, is not such error as prejudiced the right of the party against whom the error was committed. No one has a vested right in "judicial error," but every one has in all existing legal principal and right.

Now in conclusion I have to say that it matters little, perhaps, what becomes of the appellant and his fortunes. Let us assume that it matters nothing, and that he is but the merest bubble tossed upon the restless waves of these uncertain times, that will soon disappear and leave not a ripple; yet the principle here contended for is vital and everlasting. If our judiciary can say that any legal principle, rule, or right is not essential and may be disregarded in any case, then for the first time in our history has our government become a government of men and not of laws.

Frank Roberson, Assistant Attorney-General, for the state.

The two errors assigned are as follows: First, the indictment is void on its face and charges no offense because of the omission of the verb, "did" in the indictment; second, that the evidence offered by the state is not sufficient on which to base a conviction.

This court has held in Cook v. State, 72 Miss. 517, 17 So. 228; Hall v. State, 44 So. 810, and McCearley v. State, 52 So. 796, that the omission of the word, "did" in an indictment is fatal error and can be taken advantage of at any time.

If the court follows these decisions, it would seem to be necessary to reverse this case. However, I submit that the reasoning in these cases no longer applies if it ever in fact existed. I admit that the great weight of authority is in support of these decisions, but I have long since been of the opinion that the supreme court of Mississippi would, at some time, refuse to follow a technicality of this kind. In the case at bar, no demurrer was filed to the indictment and no motion in arrest of judgment was made, and this point as to the omission of the word "did," is first presented to this court.

The purpose of an indictment is to inform a defendant of the crime of which he is charged. If the language used performs this purpose, how can it logically be said that the indictment is not good in law even though it may be grammatically imperfect.

I think I can assert with confidence that if this proposition were submitted to any member of this court as an original proposition under the facts of this case, that it would be held without hesitation to be a clerical error and not an error that would reverse. The defendant and his counsel in this case understood perfectly the crime with which he was charged as would appear from the instructions given the defendant in the court below.

I am persuaded to present this matter to the present court for the reason that I have observed a tendency on the part of the supreme court of Mississippi to disregard technical objections that once obtained but the reasons for which have long since ceased to be recognized by the bar.

Extremely technical accuracy anciently required, called forth the remarks of Lord Hale that, "the great, strict and unseemly niceties required in some indictments tend to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonor of God."

It is therefore refreshing to note that some attempt has been made to break away from these rules of strict adherence to procedural technicalities that have become rigid from the petrification of time rather than because of intrinsic merit. Such notable efforts have marked the decisions of the courts of Oklahoma which the tribunals of the older states would do well to emulate. Chief Justice FURMAN of that court, in Caples v. State, 3 Okla. Criminal Reports, 72, used this language: "The supreme purpose of this court is to give the people of this state a just and harmonious system of criminal jurisprudence, founded on justice and supported by reason, freed from the musticism of arbitrary technicalities, and this standard will control our decisions, it matters not what or how many other appellate courts may have decided to the contrary.

"We know that there are respectable authorities holding to the contrary, but this court will not follow any precedents unless we know and approve the reason upon which they are based, it matters not how numerous they may be, or how eminent the court by which they are promulgated. It is our duty to construe the laws of Oklahoma regardless of the law of other states. Now that our criminal jurisprudence is in its formation period, we are determined to do all in our power to place it upon the broad and sure foundation of reason and justice, so that the innocent may find it to be a refuge of defense and protection, and that the guilty may be protected, and taught that it is an exceedingly serious and dangerous thing to violate the laws of this state, whether they be rich and influential or poor and friendless. They all stand alike and upon an equality before this court. If we place our criminal jurisprudence upon a technical basis, it would become the luxury of the rich, who can alike hire able and skilled lawyers to invoke technicalities in their behalf, but what would become of the poor and friendless who cannot secure these services? It is the poor and friendless who cannot secure these services, and who need the strong arm of the law for their defense. By placing our system of criminal jurisprudence upon the basis of reason, justice becomes the right of the poor as well as the rich. We will give full consideration to all authorities which are supported by living principles, and will follow them when in harmony with our laws and the conditions existing in Oklahoma. But we must confess to want of respect for precedents which were found in the rubbish of Noah's ark, and which have outlived their usefulness, if they ever had any. When the reason for a rule of law ceases, the rule should cease also. If this be revolution, then we are and will continue to be revolutionary. The information in this case is free from the objections urged against it, and we approve the action of the trial court in overruling the objections thereto."

An indictment in which the word "did" was omitted was held to be a mere clerical misprision in the following cases: Dickens v. State (Fla.), 38 So. 909; State v. Whitnery, 15 Vt. 298; State v. Edwards, 19 Mo. 674; People v. Duford, 66 Mich. 90, 33 N.W. 28; Caesar v. State (Fla.), 39 So. 470. The case of Caesar v. State, comes from a court that has a high standing in our American courts, and I believe that our court can well adopt the reasoning in that case and thereby uphold the indictment in the case at bar.

I do not think it necessary to enter into a discussion as to the sufficiency of the testimony to sustain a conviction. The court will ascertain from this record that the jury were well justified in returning a verdict of guilty as charged. I respectfully submit that on the facts of this case, the judgment of the lower court should be affirmed.

COOK, J. HOLDEN and STEVENS, JJ., dissenting.

OPINION

COOK, J.

The question in this case is: Did the indictment preferred against the defendant charge any crime known to...