Burges v. State, 81 Miss. 482

Burges v. State

81 Miss. 482 | Miss. | 1902

Whitfield, C. J.,

delivered the opinion of the court.

Looking backward through the whole case, we are constrained to hold the court erred in not compelling the district attorney to. elect on which count he would proceed, before any evidence was introduced for the state. If, looking back, we could see no prejudice resulting to the defendant, we would not reverse, although it is bad practice not to compel election where distinct felonies are charged in two distinct counts of the indictment. Woods, C. J., speaking for the court in Cannon v. State, 75 Miss., 364 (22 South., 827), sets out that doctrine. In that case the motion was held to have been made too late, because not made until all the evidence had been introduced, but the court observed, ‘ ‘ If the motion had been made in good time, we must suppose the court below would have required the state to elect. ’ ’ This, too, was in a case where the indictment charged {£ two distinct offenses, growing out of the same transaction.” In Hill v. State, 72 Miss., 527 (17 South., 375), the same learned judge observed: “ We beg to utter a word of advice and warning, made proper by the protracted and anxious consideration of the question raised by the demurrer to the indictment. If it be supposed that the two counts in the indictment charge distinct offenses of the same general character, and committed at different times, then such joinder of two offenses has been characterized as bad practice. In the case of Teat v. State, 53 Miss., 439; 24 Am. Rep. 708, and in Strawhern v. State, 37 Miss., 422, it was said: ‘The practice of joining distinct felonies in the same indictment is not to be commended. ’ In fairness to one accused of crime, he should not be put to trial on one indictment for more than one offense, and two or more counts in *485the same indictment should -be employed only for the purpose of charging one transaction in varying forms, to meet the possible developments of the evidence on trial. In the case before us, if the second count had never been inserted in the indictment, or if the learned court had sustained the demurrer to this count, and stricken it out, the very trial which actually took place, in every step of its progress, would have been had on the first count, for no reference to the second count’s charge was ever made by any one on either side after the demurrer had been overruled. Why, then, it was not stricken out, it is impossible for us to conceive. JMo possible harm could have come to the state’s case by so doing, and all question of fairness to the accused would have been avoided thereby. The fair way is the safe way, and the safe way is the best way, in every criminal prosecution. The history of criminal jurisprudence and practice demonstrates generally that if every one prosecuted for crime were fairly and fully conceded all to which he is entitled, and if all doubtful advantages to the state were declined, and if adventurous forays into dangerous and unknown fields were shunned, and if the beaten paths were heedfully followed, there would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals.” We. reaffirm this wise announcement of the law. The propriety of the observations of Judge Woods is strikingly shown in this case. Here testimony was allowed to go before the jury showing that the appellant had in his possession the tools and machinery necessary for plating silverware and jewelry. The object of this proof, of course, was to show that he had the apparatus with which to make the counterfeit coin. The making of counterfeit coin and the uttering of it are two entirely distinct offenses. This testimony would have been entirely competent on the charge of making counterfeit coin, but it was just as clearly incompetent on the charge of uttering counterfeit coin already made. One may utter counterfeit coin who never made any counterfeit *486coin, and yet, in the case in hand, proof not competent on the charge of uttering coin was allowed to get to the jury, and remain before the jury throughout the trial, although at the conclusion of the evidence for the state the district attorney elected to proceed on the count charging the uttering only. It seems to us that this testimony may very well have prejudiced the defendant’s case before the jury materially.

Reversed and remanded.