83 So. 311 | Miss. | 1919
Lead Opinion
delivered the opinion of the court
Appellant was indicted, tried, and convicted for the murder of W. B. Culpepper, and sentenced by the circuit court of Lauderdale county to be hanged. From this judgment imposing the death penalty appellant appeals, and assigns a number of alleged errors relied upon for reversal. The proof for the state shows that Beeman Boatwright, at the time of the tragedy, September 5, 1918, was a soldier in the United States Army, and a deserter, having left Camp Funston without leave, and being in hiding in the mountains of Lauder-dale county, some two or three miles south of the city of Meridian. Mr. Culpepper,' the deceased, was a
. We may state in the outset that there is no merit in any of the assignments that the court erred in refusing to continue the caus'e, to change the venue,- or to quash the special venire. There was, furthermore, no error in admitting testimony that- appellant
The first,, and about the only, point that has troubled the court is the contention that the defendant-was not served with a copy of the indictment and of the special venire at least one entire day before trial, as provided by section 1481, Code of 1906 (section 1239, Hemingway’s Code). Copy of the venire and of the indictment was. legally served on appellant on Saturday afternoon at 4 o’clock, and the venire was returnable and the ease called for trial the following Monday morning at 9 o’clock. It is the contention of appellant that the one entire day mentioned in the statute means a judicial or week day, and that the legislature in enacting the statute under review did not contemplate that Sunday should be considered in giving or estimating the one entire day. Appellant relies upon Nixon v. State, 2 Smedes & M. (Miss.) 497, 41 Am. Dec. 601. The state contends and the learned circuit judge ruled that section 1606, Code of 1906 (section 1373, Hemingway’s Code) fully answers appellant’s argument and rulés the point under discussion. This section of the Code reads as follows:
“When process shall be required to be served or notice given any number of days, the day of serving the process or of giving the notice shall be excluded and the day of appearance included; and in all other cases when any number of days shall be prescribed, one - day shall be excluded and the other included. When the last day falls on Sunday, it shall be excluded ; but in other cases Sunday shall be reckoned in the computation of time.”
This statute applies in all cases where process is required to be served or any lawful notice given, and, its language being plain, must be applied to the ease at bar. It furnishes a uniform statutory rule for the
The supreme court of Louisiana in State v. Baudoin, 115 La. 837, 40 So. 239, held that the two days given the accused by the Louisiana statute (section 992, Revised Statutes) need not be judicial days. In the case of Payton v. State (Tex.), 34 S. W. 615, it was ruled that Sunday as an intervening day should be counted, the Court of Criminal Appeals, by HbNdersoN, J.. observing:
“ Appellant contends that he was placed upon trial before two full days had elapsed after he was served with a copy of the indictment. The court’s explanation shows that the indictment was served on him on Saturday, and he was not brought to trial until Tuesday. The contention of the appellant that Sunday should not be counted is groundless.
Our conclusion, then, on this point is that the statute governs; that Sunday in this case is an intervening-day, and must be ‘ reckoned; and accordingly that appellant’s assignment on this point must be overruled. Our conclusion on this point' has been reached without consideration of the state’s contention that request
The only other legal question of any merit arises from the refusal of the court to grant the defendant certain instructions based upon the idea that Mr. Cul-pepper, although a lawful constable, had no right to arrest appellant, a deserter. It is said in 5 Corpus Juris. 410: •
'“Formerly a civil peace officer had no right to arrest without a .warrant or military order a deserter from the United States Army; but this rule has been changed by act of Congress expressly authorizing any civil officer of any state to arrest deserters without a warrant. ”
The act referred to is that of June 18, 1898, 30 U. S. St. L. 484, chapter 469, section 6 (U. S. Comp. St. section 2297). Based on this statute, the supreme court of Missouri in State v. Pritchett, 219 Mo. 696, 119 S. W. 386, upholds the right of a. constable of .Missouri to arrest a deserter without warrant.
The testimony in the present case shows that Mr. Culpepper knew Beeman Boatwright; that appellant also knew the. officer; and that the officer, at the time he undertook to arrest appellant, did not merely have a suspicion that appellant was a deserter, but was'confident of the fact, and there is no dispute in the record that appellant had in fact left his post of duty at a time when our government was at war. The testimony of the state further tends to prove that appellant resisted arrest, and in so doing' exhibited and used a, deadly weapon. We are of the opinion that is was not only the right, but the duty of the constable, under such state of facts,' to place appellant under arrest, and his action in doing so needs no apology. The officer in this
Tbis case has bad our most careful consideration, and on all points argued tbe judgment of tbe circuit court must be affirmed;* and Friday, tbe 6th day of February, 1920, is hereby fixed as tbe day of execution.
‘ Affirmed.
Tbe provision of' section 1481, Code of 1906 (section 1239, Hemingway(s Code), here in question is as follows:
“Any person indicted for a capital crime shall, if demanded by him, by motion in writing before the completion of tbe drawing of tbe special venire have a copy of tbe indictment and a list of the special venire summoned for bis trial, delivered to him dr bis counsel at least one entire day before said trial.”
Tbe day therein contemplated is a “clear” day of twenty-four hours (Carter v. Henry, 87 Miss. 411, 39 So. 690, 6 Ann. Cas. 715), begins at 12 o’clock midnight, ends at 12 o’clock on tbe night following (Robertson v. State, 43 Ala. 325; 17 C. J. 1131), and is a day other than Sunday (Robertson v. State, supra; 22 Am & Eng. Ency. of Law [2 Ed.], 388).
Sunday in law is dies non, and in tbe case at bar counsel for tbe appellant was not only not required by law to work on Sunday in order to prepare bis client’s case for trial, but, on tbe contrary, bad be violated tbe Sabbetb by so doing, be would have come within tbe
The provision of section 1606, Code of .1906 (section 1373, Hemingway’s Code), that “when the last day falls on Sunday, it. shall be excluded; but in other cases Sunday shall be reckoned in the computation of time ’ ’— probably has no application here, for it seems to deal, with the computation of time in cases involving more than one day; but if it does apply, then it is manifest that Sunday cannot be'counted against this .appellant, for the last day given him in which to examine the indictment and jury list was Sunday. Monday cannot be counted for the reason, among others, that the appellant was not only not given that day in which to examine the indictment and jury list, but, on the contrary, was prevented on that day from so doing by being put on his trial.
• If the statute required the delivery of a copy of the indictment and of-the jury list to a person charged with a capital crime, in order to notify him of the day on which lie is to be tried, and to require his presence there, then it may be that the day on which he should appear for trial should be counted; but such is not the purpose of the statute, for the requirement of the delivery of the copy of the indictment and of the jury list ■ to the prisoner is that he or his counsel may have at least one entire day in which to prepare his answer to the indictment, and to inquire into the qualifications, bias, prejudice, interest, etc., of the persons from whom-the jury by which he will be tried are to be "drawn. The' right is a very valuable one, is indispensable to the orderly and humane administration of the criminal law, and should not be frittered away 'by judicial decision.
For the foregoing reasons my Brother Sykes and I are of the opinion that the judgment of the court below should be reversed and the cause remanded.
Concurrence Opinion
(especially concurring). I concur generally and specially in the affirmance of this case. First, I do not think the accused was deprived of his right to have a copy of the indictment and list of the venire delivered to him “at least one entire day before trial,” under sections 1481 and 1606, Code .of 1906 (sections 1239 and 1373, Hemingway’s Code). Second, that-in view of the fact that the service required by the statute was had one whole day and a part of two different days before the trial, and the further dominating fact that this record shows overwhelming and' manifest guilt in the murder of an officer while in the lawful performance offhis duty by a dangerous and desperate outlaw, impels me to conclude that the right result was reached and justice was doné, and that no other result could have been reasonably reached by any fair-minded jury that might have been impaneled.
It will be observed that since the decision of the Nixon Case, 2 Smedes & M. (Miss.) 497, 41 Am. Dec. 601, the statute (section 1606, Code of 1906) was enacted. This statute, which of course must now prevail, undertakes to prescribe how time shall be computed in the service of process or notice in all eases. From a careful reading of this statute, and considering it in' all of its parts and as an entirety, it becomes obvious that the legislature has said, in substance, that Sunday shall hot be computed when it happens to be the last day,' but that in all other cases where Sunday is an
The argument and reasoning of the dissenting opinion in this case is plausible upon first view, and seems to be based upon the theory that Sunday being a non dies, and that the statute requires service of an entire day, and that Sunday in this case was the only day, and therefore the last day,- it must be excluded in the computation here. This conclusion would be sound if it were not for the very language and meaning of the statute itself.
The accused is entitled only to the right as given by statute, and in determining that right the two statutes must be looked to solely. .In the case at bar I do not think that the first day, Saturday', or the last day, Monday, which was the day of trial, can be counted as an “ entire day, ’ ’ because the first and last days here were fragments of days, and not an entire day, as provided by the statute (section 1481, Code of 1906). But there was an “entire day” intervening between Saturday and Monday. The intervening day happened to be Sunday. Under the common law it was ‘■‘■non dies,” no day; but here, under this particular statute, it is made and considered a day for the purpose, and required to be computed as a day, which is an entire day, as given the accused by the statute. Certainly the legislature may provide that Sunday shall be computed as an entire day so far as the prescribed right of the accused is concerned. The accused would have no right to a day at all, were it not fob the legislative act; and when that act provides that Sunday shall be counted as a day whenever it is an intervening day it establishes Sunday as a day to be computed in such cases'; therefore, while the reasoning in the dissenting opinion sounds well from the point of benefit to a defendant, still it cannot U the right view here, because the language and intent
The main opinion herein cites authorities which sustain the point of view expressed above. It seems that the authorities generally hold that, when the computation of time is fixed by the statute, then the common-law rule with reference to the computation of time shall yield to the statute, and that only so much as is prescribed by the statute, shall be allowed in such cases.
I say then that under the. statute (section 1606, Code of 1906) in all cases when Sunday is an intervening day it must be computed, otherwise the statute would have little meaning in any case unless the time prescribed for the service should be a plural number of days. See section 1604, Code of 1906. Here the time granted was one entire day. Sunday was not the last day within the meaning of the statute, but was an intervening day. The accused had a part of Saturday and a part of Monday and all of Sunday in which to consider the list of -the venire delivered to him. While neither Saturday or Monday could be counted as an entire day because they were fragments of days, nevertheless they were both judicial days upon which service could be had and action taken, and are to be reckoned as days for the purposes of service and appearance under the statute. The statute does not provide that the “entire day” shall be a weekday or judicial day, but plainly intends that there shall be no exception for the computation of time whenever the Sabbeth day is an intervening day. This conclusion harmonizes the two statutes involved, satisfies the requirement of an “entire day” of section 1481, Code of 1906 (section 1239,