57 So. 209 | Miss. | 1911
Lead Opinion
delivered the opinion of the court.
The appellant was tried, convicted of murder, and sentenced to be hanged for the killing of one Tobe Wallace. The evidence in the record clearly and unequivocally, beyond question or cavil, shows that he killed Tobe Hollis. When the attention of the attorney general was called to the discrepancy between the indictment and the proof, a motion for a certiorari was made in, and sustained by, this court, and in pursuance thereof the original indictment and the original transcribed notes of the stenographer were sent up to this court; and the original indictment and the original transcribed notes of the stenographer show that the transcript in this court is correct. In other words, not only the tranr script, but the original indictment and the original transcribed notes of the stenographer, show that appellant was indicted for the murder of Tobe Wallace, and that he killed Tobe Hollis.
There is not one single instruction, either for the state or defendant, which directly or indirectly refers to the deceased as Tobe Hollis; but, upon the other hand, the party killed, in each and every instruction is referred to as “the deceased.” There is no effort made on the part of the state to show by any sort or kind of evidence that there is any error in the record to the effect that the name of the deceased was Tobe Wallace, instead of Tobe Hollis. Only record evidence would be admissible to show this, and there is no record evidence in existence’; and, of course, parol evidence is clearly inadmissible to contradict the record. Jones, Receiver,
The sole and single question, therefore, is: Can this: court afford to permit this appellant to be punished in the face of the record, which shows conclusively that he is not guilty of the crime charged? It is insisted that, notwithstanding the record shows that if was Tobe Hollis who was killed, it must be assumed that there is some mistake in the -record; that surely, if upon the trial in the court below the evidence showed that it was Tobe Hollis, and not Tobe Wallace, who was killed, the defendant would have objected to the evidence as to the killing of Tobe Hollis; and, further, that if he failed to object he waived his right, and that the objection cannot be made for the first time in this court.
In answer we say that, when a person is upon trial for his life, he stands at every stage of the trial objecting to all- illegal proceedings; and it is only in instances specified by the statute that he waives those things which the statute makes him waive in the event he fails to object. Section 4936 of the Code of 1906 is as follows: “A judgment in a criminal case shall not be reversed because the transcript of the record does not show á proper organization of the court below or of the grand jury, or where the court was held, or that the prisoner was present in court during the trial of any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record shows that the errors complained of were made ground of special exception in that court.” This court, in Bryant v. State, 65 Miss. 435, 4 South. 343, says this: “The motion for a new
It seems to ns to be just as necessary to prove that the party killed was the party alleged in the indictment to have been killed, as it was to show that the local option law was in force in the Bryant case. It will be a sad, sad day in the jurisprudence of any country when the courts will permit one of its citizens to be hung for the commission of a crime of which the record made by the state completely and fully acquits him of the charge. The standing aside from the beaten path of immemorial usage, worn hard and bare by the footsteps of our forefathers in the law, in order to make way for the passing of the funeral cortege, brought about by a too liberal construction of a criminal statute enacted in derogation of the common law, is the recognition and enforcement of too dangerous a doctrine to comport with the humane and beneficien! conduct of a civilized court. To permit the conviction to stand in a case where the party is charged with killing one person, and where the record shows conclusively that he killed an entirely different person, is akin to the'court joining in the mob and executing the party under the form, hut without the authority, of law.
This court held in Matthis v. State, 80 Miss. 491, 32 South. 6, that it would decline to pass on objections to
It may be urged that under section 1508 of the Code the lower court had the right to cause the indictment in this case to be amended, so as to' charge the defendant with having killed Tobe Hollis. Section 1508 is as follows: “Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof ... in the name or description of any person or body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offense, or in the Christian name or surname, or both, or other description whatever of any person whomsoever, there
All of these cases present an entirely different question from the one which is now presented by this record. If the court in the trial of the case at bar had amended the indictment in the lower court before the jury had returned the verdict, the question would have been a very different one from what it is now. The
The question which this record presents is not what may be termed a technicality in any sense of the term. It is a matter of substantive right. To permit a person to be hanged when the evidence shows that he was convicted for the murder of a person different from the •one charged in the indictment is absolutely shocking in the extreme. Our conscience recoils with absolute horror from such a proposition.
Reversed and remanded, and a new trial granted.
Dissenting Opinion
(dissenting).
Appellant was indicted for the murder of Tobe Wallace, but in the bill of exceptions the name of the deceased appears as Tobe Hollis, thus disclosing a variance between the allegation and proof of the name of the man alleged to have been murdered. No motion was made in the court below to exclude the evidence of the ground of variance, nor was any objection raising this question interposed in the court below at any time, ■either before or after verdict, and no such objection has been made here by counsel. This point was raised by this court sua sponie.
■The fact is that appellant was tried and convicted for the murder of Tobe Wallace, and the statement of his name as being Tobe Hollis crept into the bill of exceptions by error in the making up of the same. It is man
I have set out the foregoing facts simply to show the absurd result to. which the error into which my brethren have fallen has led them; for, of course, we must be governed here bv tbe bill of ’executions, and cannot go outside of it in order to ascertain what the evidence in the court below was. Conceding, then, that according to the record deceased’s real name was Hollis, what occurred was simply a variance between the name of the deceased as alleged in the indictment and his name as shown by the evidence; and had a motion been made by the district attorney, even after the evidence was closed, to amend the indictment, so as to make the name of the deceased therein conform to the proof, this amendment must have been allowed under section 1508 of the Code. Had appellant called the attention of the court and of the district attorney to this variance by interposing an objection on that ground, this amendment would, of course, have been promptly made, and the defect cured. If the defendant desired to object to this variance, it was his duty to do this before verdict, so that the amendment to the indictment could be made; and, failing to do this, the universal rule, so far as I am aware, is that he waived this defect, and cannot thereafter take advantage of it. “Consensus tollit errorem” (the acquiescence of a party who might take advantage of an error obviates its effect) is one of the most elementary of the common-law maxims of procedure. 2 Hughes, Grounds and Rudiments of Law, p. 445; Broom’s Legal Maxims (8th Ed.), 136. In explaining this maxim Mr. Broom says: “Where, however, an irregularity has been committed, and where the opposite party knows of the irregularity, it is a fixed rule, observed as well by courts of equity as of common law, that he should come in the first instance to avail himself of it, and not
My brethren have misunderstood the case of Wood v. State, supra; for they say that this court held in that case that there was no fhtal variance between the indictment and the proof with reference to the person assaulted. What the court in fact did hold was that, although there may have been a variance between the indictment and the proof, the point, not having been made in the court below, could not be raised in the supreme court for the first time. The language of the court in that case was as follows: “The indictment charged that the appellant, on the 26th day of July, A. D. 1884,. ‘in and upon one Socratus Scott, did unlawfully make an assault,’ etc. ... It appears in evidence that the name of the injured party was Marion Socratus Scott, and that he was generally known and called by the name of ‘Crate’ Scott, and it is conceded that this was a fatal variance, for which the conviction must be set aside. It is too late to raise the objection. If the point had been made in the court below, it would have been competent for the court to have directed an amendment according-to the name proved.' Code 1880, sec. 3081. The defendant, not having interposed his objection in the court below, cannot now be heard to complain. Code 1880, sec. 1433.”
In addition to the common-law rule as hereinbefore set forth, it has been expressly held that under section 1413 our criminal statute of je.ofails, objections on account of variances, of the character here under consideration, mnst be made before verdict, and, if not so made, cannot thereafter be taken advantage of. Unger v. State, 42 Miss. 642; Wood v. State, 64 Miss. 761, 2 South. 247. But I will assume, for the sake of the argument,' that the two cases just cited were erroneously decided and should be overruled, that variances between alleg’ations and
In Alexander v. Flood, supra, the language of the court is: “ The office of a motion for a new trial also remains
The cases of Miller v. State, 53 Miss. 403, Miller v. State, 68 Miss. 221, 8 South. 273, and Bryant v. State, 65 Miss. 435, 4 South. 343, are not in point, for the reason that the matter here under. consideration was not therein involved. In the last-named case no question of variance arose at all. The counsel for the state simply failed to introduce testimony showing that the county in which the offense was charged to have been committed was operating under local option law, and, since the court at that time could not take judicial notice of that fact, the matter stood as if the sale of liquor in the county was legal. This being true, the evidence wholly failed' to show the commission of any crime. Here the evidence shows abundantly the commission of the crime intended to be charged in the indictment, and simply contains a variance between the name of the deceased as contained in the indictment and the proof.
While there are some objections — for example, one of jurisdiction — which this court ought to raise sua sponte,
In the last-cited case, my brethren say that “this court is strictly a court of review, and it is only in rare in
For these reasons-, L am unable to concur in the conclusion reached by my brethren.