Atkinson v. State

96 So. 310 | Miss. | 1923

Lead Opinion

Anderson, J.,

delivered the opinion of the court.

Appellants, Jeff Atkinson and Will Atkinson, were indicted in the circuit court, .First district, Hinds county, for the murder of Joe Owens. Will Atkinson was convicted of murder and sentenced to the penitentiary for life. Jeff Atkinson was convicted of manslaughter and sentenced to the penitentiary for ten years. From these judgments they prosecute appeals to this court, which will be considered together.

Appellant interposed a plea to the jurisdiction of the court which was overruled. This action of the court is assigned for error.

The wound of Avhich the deceased, Owens died was inflicted in Leake county. Owens was brought from that county to the first district of Hinds county. Soon after the wound was inflicted from which Owens died affidavits Avere made before a. justice of the peace of Leake county charging appellants with an assault and battery upon him with a shotgun, a deadly weapon, with intent to kill and murder. Upon such affidavits warrants were issued for the arrest of appellants, who were accordingly arrested by the sheriff of Leake county and placed in jail in that county. Owens was brought from there to the Baptist Hospital, Jackson, First district of Hinds county, and there died. After the arrest and incarceration of appellants in Leake county it was agreed by the prosecuting attorney of that county and the attorney for the appellants that the cases then pending before the justice of the peace of Leake county 'should stand continued to await the result of the wound received by Owens. The matter thus stood at the time of the death of Owens; no further action having been taken in said prosecutions begun in Leake county. Immediately upon the death of Owens in the First district of Hinds county affidavits were made against appellants before a justice of the peace in that district charging them with his murder. After the institution of this prosecution in the First district of Hinds county the said prosecution begun in Leake county was dismissed by the county attorney of that county ^without any agreement to that effect with appellants or their attorney.

It is contended that the circuit court of the First district of Hinds county was without jurisdiction because the courts of Leake county had first acquired jurisdiction by virtue of the prosecution there begun as above set out. Appellants rely upon section 1407, Code of 1906 (Hemingway’s Code, section 1162), which provides, among other things, that where the mortal wound or other cause of death is inflicted in one county, and death occurs in another county, the offender may be indicted and tried in either county, and section 1406, Code of 1906 (Hemingway’s Code, section 1161), which is in this language:

“When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.”

It will be observed that the latter statute provides, in substance, that when a crime is committed partly in one county and partly in another, the jurisdiction shall be in either county, but the courts of that county where prosecution for such crime was first begun shall have the right to conduct the same to a final determination. The question therefore is whether the prosecution begun before the justice of the peace in Leake county which was pending until after the death of Owens was such a beginning of a prosecution for said offense as gave the courts of that county exclusive jurisdiction to proceed to a final judgment.

As it appears to the court this question is answered in the affirmative by the cases of Coleman v. State, 83 Miss. 290, 35 So. 939, 64 L. R. A. 807, 1 Ann. Cas. 406, and State v. Hughes, 96 Miss. 581, 51 So. 464.

It is contended on behalf of the state, however, that those cases are not decisive of the question here involved, because in each of those cases the crime charged had been entirely consummated when the first prosecution was begun, while in the case before the court the state says that the crime had not been completed until the death of Owens, which took place in the First district of Hinds county, and that therefore no prosecution for said crime could have been begun prior to that time in Leake county; in other words, that the prosecution begun in Leake county was not one for murder, but for a lesser offense, viz., shooting with intent to kill and murder, and therefore it was not the commencement of a prosecution in the meaning of said statute.

We hold, however, that the proceeding begun in Leake county was the beginning of a prosecution within the meaning of said section 1406, Code of 1906 (Hemingway’s Code, section 1161), for the following reasons: It should be borne in mind that the fatal wound which resulted in Owens’ death had already been inflicted when the proceeding in Leake county was begun. The criminal act had already been consummated. So far as appellants were concerned, they had done all they ever did do to perpetrate the crime. Section 1534, Code of 1906 (^Hemingway’s Code, section 1296), prescribes the duties of conservators of the peace in criminal cases. • Section 1461, Code of 1906 (Hemingway’s Code, section 1219), provides in substance that, if a person be dangerously wounded, the accused shall be committed to jail until it be known whether the wounded person will recover or not, unless it appear to the court of inquiry that in any event the crime would not amount to murder. Section 2753, Code of 1906 (Hemingway’s Code, section 2252), provides that, if on the trial of a criminal case the justice of the peace discover it is a felony of which the accused is probably guilty, instead of a misdemeanor, he shall not render a final judgment, but shall require the accused to give bail for his appearance in the circuit court unless it be a felony which is not bailable, in which case it shall be the duty of the justice of the peace to commit the accused without bail.

It was held in Ex parte Burke, 58 Miss. 50, that an affidavit charging a crime serves to procure the arrest of the accused, and, if the justice of the peace believe him guilty of a felony, he must bind him over, and the mitimus will be valid, although the affidavit before the justice of the peace only charge a misdemeanor. And it was held in Ex parte Smith, 79 Miss. 373, 30 So. 710, that where a defendant is charged with an assault and battery, and it appears that the death of the injured party resulted from defendant’s blows, it is not improper, but it is the duty of the justice of the peace, to bind the defendant over to await the action of the grand jury. In State v. Hughes, supra, in discussing what constituted the beginning of a prosecution for crime, the court said:

“The policy of our statute in regard to this is clearly outlined in section 1415, Code of 1906.”

Section 1415, Code of 1906 (Hemingway’s Code, section 1171), prescribes what shall constitute the beginning of a prosecution so as to stop the statute of limitations applying to criminal offenses, and is in this language:

“A prosecution may he commenced, within the meaning of the last preceding section, by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.”

We have here therefore a case where the fatal wound had been inflicted in Leake county, and a prosecution begun in that county which was pending when the wounded man died in Hinds county, which prosecution the justice of the peace before whom it was pending had the right under the law, on learning of the death of said decedent, Avithout any amendment to the affidavit already on file, or the making of a new affidavit charging murder, to proceed therewith, and to bind appellants over on the charge of murder to. await the action of the grand jury of that county. A prosecution had been begun in Leake county for the unlawful shooting of Owens, and this gave the courts of that county the exclusive jurisdiction of the crimes of manslaughter and murder resulting therefrom.

Section 26, Constitution of 1890, provides, among other things, that a defendant charged with crime shall be tried in the county where the offense was committed. Section 1407, Code of 1905 (Hemingway’s Code, section 1162), is not violative of this constitutional provision because at common law there was much confusion on this subject in the decisions of the courts — so much in fact that it Avas unsettled whether the situs of the jurisdiction of the crime of murder was in the county Avhere the mortal wound was inflicted or in the county where the death occurred. Some of the English courts held that the crime occurred in one county and some in the other; and some held that the offender was not indictable in either county. To remedy this condition the Statute of Edward VI was passed, which made the offense triable in the county where the death occurred. That it was competent for the legislature to provide for the trial of the offense either in the county Avhere the wound was inflicted or the' death occurred is set at rest, we think, by Stoughton v. State, 13 Smedes & M. 255. The coiirt said in that case:

“The case must turn on a different point. The wound was inflicted in Perry county, where the prisoner was indicted, but death occurred in Harrison county. In such cases there is an express statutory provision requiring that the indictment should be found in the county where the death occurs. Poindexter’s Code, 314. This statute seems to have been overlooked in the subsequent compilations, though it is not repealed; at least we have found no act repealing it. It simply provides that the indictment, found in the county in which the death may happen, shall be good and valid in law. The better opinion seems to have been that by the common law, when the blow was given in one county, and the death happened in another, the offender was not indictable in either. This, however, was a point that gave rise to doubts. The difficulty was obviated by the Statute of Edward VI, which made the offense triable in the county where the death happened. Our statute was passed with the same object. It does not, it is true, say the prisoner shall not be tried in the county where the stroke was given; and if it could be clearly shown that he was triable there by the common law, perhaps the statute might be regarded as giving the additional power to try him in the county where the death happened, without interfering with the jurisdiction as at common law. But as the question was, to say the least of it, doubtful at common law, the statute must be regarded as the only law on the subject.”

Indictments quashed, and cases reversed and remanded, and appellants ordered held to await the action of the grand jury of Leake county.

Reversed and remanded.

---

Dissenting Opinion

Holden, J.

(dissenting).

It is with reluctance that I put my judgment against that of the majority of my brethren in any case, because I have been here long enough to realize my limitations and to appreciate the judicial ability of my associates, but I cannot refrain from recording my dissent in some cases, such as the one before us, where it seems plain that the majority have an erroneous view of the law of the ease.

I shall not enter into a full discussion of my dissenting conclusions in this case, for the reason that it is doubtful if a dissenting opinion ever proves of any value in the adjudication of the case, since such dissent cannot be used as a precedent, and can have no effect upon the decision of the majority, unless in some instances it may tend to weaken or cause less respect for the rule laid down by the court.

However, in the instant case I think the majority opinion is wrong in this particular, viz.: The prosecution for the completed offense of murder was first begun in Hinds county by an indictment of the grand jury, and was never started in Leake county at all. The affidavit filed before the justice of the peace in Leake county did not charge murder, because the death necessary to make the offense murder had not occurred at the time of the filing of the affidavit, but took place, and completed the offense of murder, subsequently in Hinds county, where the indictment was found and the conviction had. The filing of an affidavit before a magistrate which only charged assault and battery with intent to kill is not, in my judgment, the beginning of a prosecution for the crime of murder, fe'uch a proceeding is in the nature of an examining trial upon a different charge than that of murder. The offense of murder may never come into existence because the wounded party may not die. If the affidavit in Leake county had charged murder, then the prosecution for murder would have first begun in that county, but the affidavit here only charged a lesser offense and could not charge murder until the death ensued in Hinds county.

Originally the jurisdiction for the trial of murder was solely in the county where the death occurred, but under the statute now either county is given jurisdiction, and, where the prosecution is begun in one county for the completed offense, that county has sole jurisdiction. Now it will be apparent that in practically all cases where the wound is inflicted in one county and the death occurs in another some person will make 'the charge of assault immediately in the county where the wound was inflicted, and, if the majority opinion is correct then it would be a rare case where the court would obtain jurisdiction in the county where the death takes place. '

I think the statute contemplates sole jurisdiction in the county where the prosecution first begins for the consummated offense of murder or homicide, and not in the county where the justice of the peace charges the offender with a different offense. The practice is well known to the bar that in such a casp the justice of the peace requires a new affidavit for murder when the assaulted party dies. And I believe that, if this affidavit charging murder is first made in the county where the wound was inflicted, then the sole jurisdiction would be in that county. But that is not the case before us now.

The authorities cited by the majority opinion to support the rule announced are not applicable for the reason that in each of those cases the offense charged had bepn completed when the affidavit or indictment was made against the offender. For instance, in the Coleman case, cited by the majority, the indictment there was for the killing, or the homicide, which was the completed offense, and it was held that the county where the indictment for the homicide was returned had the sole jurisdiction. And in the Hughes case cited the offense there- was embezzlement; the crime having been completed at the time the prosecution began before the justice of the peace. The difference in those cases and this one, as I see it, is that the offense of murder here was not complete, or, I will say, had not been committed, at the time the affidavit was filed for investigation of a different offense, to-wit, assault, etc., in Leake county.

It seems to me the correct rule is and ought to be established that the sole jurisdiction for the trial of murder or manslaughter shall be in the county where the charge for such offense is first made, which in this case was Hinds county. If the filing of a charge before some inferior officer in the county where the wound is inflicted Which may never result in death is held to be the commencement of .the prosecution for the death which after-wards occurs in another county, then the result would be a foot race between the enemies and the friends of the deceased and the offender to find a convenient officer to secure jurisdiction where the respective parties think that they may have more advantages in the final trial. This confusion and possible impairment of the administration of justice should be avoided by laying down a safe and certain rule for guidance in such cases.

I respectfully invite a reading of the cases and statutes cited in the majority opinion, which I think will appear convincing that none of them hold that the prosecution is commenced for murder, the completed offense, by filing an affidavit charging the assault which afterwards develops into a homicide.

---

Dissenting Opinion

Ethridge, J.

(dissenting).

I am unable to concur with the majority opinion in this case for the following reasons:

First, because section 26, Constitution of 1890, provides, among other things: “And, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed.”

Section 1406, Code of 1906 (Hemingway’s Code, section 1161), relied on in the majority opinion, provides that:

“When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.”

This statute was first enacted subsequent to the enactment of the Constitution of 1890, and in my opinion the Constitution, being the supreme law, fixes the yenue or jurisdiction where the offense is committed as that term was known and understood at the date the Constitution was enacted. And, as I understand the decisions of this state, the jurisdiction was in such cases in the county where the death occurred in cases of murder or where the homicide was charged. The offense is committed in one county. It is not competent for the legislature to enlarge upon the Constitution; for, where the Constitution fixes the jurisdiction, it cannot be changed by the legislature. It is true that Coleman v. State, 83 Miss. 290, 35 So. 939, 64 L. R. A. 807, 1 Ann. Cas. 406, and State v. Hughes, 96 Miss. 581, 51 So. 464, proceed upon the idea that the statute is valid, but in neither of those cases was the power of the legislature called in question, nor was the constitutionality of the statute challenged. There is a definite purpose in the constitutional provision, and that definite purpose is to have a person accused of crime of an indictable nature tried whére the offense is committed, and the legislature cannot pick out a number of jurisdictions and leave to the prosecuting power of the state the selection of the battle ground. The trial must take place in one particular county or jurisdiction then prescribed by law, and the accused cannot be deprived of this right without his consent.

If the legislature has power to prescribe that jurisdiction may exist in any county where the effects of an act or the means or agency of an act may extend into another county, which enables the prosecution to select either jurisdiction in which it chooses to commence operations, the constitutional provision is a vain and idle utterance. The object of the Constitution was to confer protection on the person accused of crime, to give him the right to face his accusers in the jurisdiction where the offense occurred, and he cannot be deprived of this by the expedient of the legislature enacting statutes contrary to the Constitution.

Decisions of other states are not controlling on us. They are only persuasive and have no binding effect as authority. The rights of the accused to be tried where the circumstances of the charge or accusation are known, and where he may have the benefit of that indefinable something that gives the public a knowledge of the entire surroundings, Avhich is sometimes called “the atmosphere” of the case, is important. Many things cannot be known under the strict rules of evidence that operate in favor of a person accused of crime so that current knowledge of men, acts, and motives cannot be reproduced under the rules of evidence.

In the second place, for the purpose of jurisdiction of felonies and the beginning of prosecutions .thereunder for jurisdictional purposes, the prosecution must be in a court that has jurisdiction to try and dispose of the issues involved in the charge. Section 27 of the Constitution of 1890 provides that:

“No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military when in actual service, or by leave of the court for misdemeanor in office; but the legislature, in cases not punishable by death or by imprisonment in the penitentiary, may dispense Avith the inquest of the grand jury, and may authorize prosecutions before justices of the peace, or such other inferior court or courts as may be established, and the proceedings in such cases shall be regulated by law.”

It will be observed from a careful reading of this section that an indictment is the beginning of the prosecution and is the only method of prosecuting a felony. The circuit court has no jurisdiction of a felony until an indictment is returned by the grand jury. Whatever may be the power of the legislature to prescribe what shall toll the statute of limitations in a criminal case, it cannot make anything except an indictment a beginning of the prosecution for purposes of jurisdiction to try the offense. Consequently any statute conferring such power to maintain a prosecution at whatever place or in whatever court an affidavit may be made is null and void so far as conferring jurisdiction is concerned. Jurisdiction is conferred on the circuit court of the subject-matter, and can only be brought into existence by an indictment returned by the grand jury. The power of the legislature to enact statutes referred to has never heretofore been brought to the attention of the court. The court, of course, proceeds, in the absence of such objections, upon the idea that the act of the legislature is constitutional under the rule of practice of the court not to decide constitutional questions until they are presented.

If, however, the statute is valid, then Judge Holden's view that it does not come into operation in the present case because the offense here involved was not charged in the affidavit is sound. This proposition has never before been decided. It is fundamental that a court has no jurisdiction to try a criminal case until a lawful charge is made, and it can only try the charge made or some lesser crime embraced therein. It cannot arrest a man on one charge and try him on an affidavit making such charge, and convict him of another crime not embraced in such charge.

The power of a justice of the peace to hold a person charged with an assault with intent to murder until the result of the assault is known is quite a different thing from charging him with the result of the assault after death shall ensue. He could not proceed after the death on the original affidavit at all, but would have to institute a new prosecution charging a different crime. In my opinion an investigating court such as conducted by a justice of the peace has neither a direct nor a collateral effect in fixing the jurisdiction for the trial of the felony. Functions of the justice are merely those of a conservator of the peace. He does not determine jurisdictions or issues. His function in such cases is to secure the presence of a suspected criminal before a court that may try the accused for his offense.