Ex parte Phillips

57 Miss. 357 | Miss. | 1879

Chalmers, J.,

delivered the opinion of the court.

The relator, who was tried and convicted in the Circuit Court of Alcorn County of the crime of manslaughter, and sentenced to ten years’ imprisonment in the penitentiary, brings this writ of habeas corpus, demanding to be discharged and set at liberty upon the ground that the record of his trial, as the same remains on file in said court, is so defective in its failure to show essential jurisdictional facts as to be a nullity. If this proposition is correct, he is entitled to be released under this proceeding, notwithstanding that clause of the statute (Code 1871, § 1397) which declares that the proceeding by habeas corpus shall not be held to authorize the discharge of any person “ suffering imprisonment under lawful judgment,” because the lawfulness of the judgment is the test of the efficacy of the writ, and the judgment itself must be tested by the record of the court which assumed to pronounce it. ' If it is true, therefore, that the record of the relator’s conviction is fatally defective by reason of its failure to show the occurrence of judicial or ministerial acts, so essential in their character that such failure, under the Constitution and laws of this State, makes the record a nullity, the relator is undoubtedly entitled to be discharged. A transcript of that record is before us, and we must say that we never saw a worse one, or one which reflected less credit upon those who are responsible for its preparation. It opens with a proper caption, stating the meeting and organization of the court at the time and place appointed by law. Then follows a recital that “the sheriff returned into court a writ of venire facias issued by the chancery clerk in the-words and figures following, to wit.” Then follows the writ commanding the sheriff to summon twenty persons, naming them, to serve as grand jurors. There is no statement by the clerk or any thing in the writ itself to show that it was issued in obedience to any order of the board of supervisors, nor is there any allusion to the board of supervisors in this record. Then follows a statement that all the persons named in the writ appeared and answered to their names. Then follows an attempt to state that the grand jury was impanelled and sworn; but the entry is imperfect, breaking off abruptly in the middle of an uncompleted sentence, and containing several blank spaces. Then the names of the foreman and of the members of the jury, and of the officer sworn to take charge of them, are all left blank. Then, without preface or recital, the indictment is given with the indorsements upon it. It is not here stated how, when, or by whom, it was brought into court, and though marked “ filed,” the indorsement to that effect is not signed by the clerk. Upon a later page of the record, where the arraignment of the prisoner is set out, it is stated that the indictment had been “ presented against him in open court by the foreman of said grand jury, and said indictment marked filed by the clerk of the court.” There is no express statement that the prisoner was personally present at 'any stage of the trial except the arraignment, though it does appear that he made motions for a new trial and in arrest of judgment, but upon what grounds, and whether in person or by counsel, is not shown.

Are these defects so fatal in their character as to make the record a nullity ? Is there an omission to state the occurrence of facts so essentially important that the omission must be held to have deprived the court of jurisdiction, or, rather, can we say that because of the silence of the record on the subject we must presume that the omitted facts did not occur ?

Undoubtedly such would have been the ruling of our predecessors under the statutes, as they existed previous to the Codes of 1857 and 1871. But those Codes wrought a vast change in the rules of interpreting in this court records of the inferior courts in criminal cases, and this difference of interpretation has been made still broader by the Acts of 1878, pp. 199, 200, 201. By Code 1857, art. 7, p. 573, and by Code 1871, § 2884, it is declared that no verdict shall be “ arrested, reversed, or annulled, after the same is rendered, for any defect or omission in any jury, either grand or petit, or for other defect, either of form or substance, which might have been taken advantage of before verdict, and which shall not have been so taken advantage of.” By the Acts of 1878, p. 200, 201, it is provided that no verdict shall be “ reversed or annulled in the Supreme Court because the transcript of the record in said court fails to show a proper organization of the grand jury, or fails to show that the prisoner was present in court during the trial, or during any portion thereof, nor for any errors or omissions occurring before sentence, which might have been taken advantage of in the court below, and which shall not have been so taken advantage of, unless said transcript shows that these errors and omissions were taken advantage of by motion or otherwise in the lower court; and when said motions are made in the lower court, it shall always be competent for the court to amend any improper entries, or supply any omissions, so as to make the record conform to the facts as they occurred.”

If these several statutory provisions are constitutional, they fairly embrace every defect found in the record before us. ' That record shows no order for the summoning of a grand j.ury by the board of supervisors, no proper organization, impanelling, or swearing of the grand jury, no appointment of a foreman, no proper bringing in of an indictment by the foreman of the grand jury in the presence of twelve of his fellows, no signature by the clerk of the filing of the indictment, and no presence of the prisoner during some of the most important steps taken at the trial. But no objections whatever were made to any of these things during the progress of the trial, nor after its conclusion, unless it was by the motion in arrest of judgment. That motion is not set out in the transcript, nor have we any information that it was made, except from a recital in these words, — “ Came on to be heard the motion of defendant in this cause in arrest of the judgment rendered herein, which motion is by the court overruled.” Assuming the constitutionality of the statute of 1878, which devolves upon the defendant the duty of attacking in the lower court the errors and omissions complained of, it is plainly incumbent on him to show in this court that he did so attack them, and hence it is his duty to see that the record properly embodies and sets out the motions or objections urged by him in the lower court with that view. His motion is not before us, and consequently we cannot say what was its scope and point of attack.

We incline to the opinion that, even upon writ of error, it would not be sufficient for him to show that he made in general terms a motion in arrest, without any specification whatever of the defects complained of. We shall certainly so rule in this collateral attack upon the record. The statute declares that when the defendant, by motion or otherwise in the lower court, complains of the errors and omissions existing in the record, the court shall have power to correct defects and supply omissions so as to make it conform to the facts as they actually occurred. The policy thus indicated will be defeated if the defendant by a mere pro forma motion in arrest, without any specification whatever of the grievances complained of, can obtain all the advantage in this court of the- irregularities in the record below. The consequence of such a ruling would be that, in every case, these formal motions would be made, which, while not giving the lower court notice of the point of the motion, would practically nullify the power confided to it of reforming the record, so as to make it show the facts as they actually occurred.

We see no error or omission in the record before us that is not covered by the existing statutes, nor do we see any valid constitutional objections to the statutes themselves. It is no less essential now than always that a party charged with a felony should be indicted by a grand jury, and that the indictment shall be brought into court and the trial be conducted according to all the forms prescribed by law. A neglect upon the part of the Circuit Court to observe any statutory enactment or common-law principle intended for the protection of the accused, where the same has not by the lawgiver been declared to be directory only, will vitiate a verdict, or, if it relates to a jurisdictional fact, will render the proceedings void. The only change wrought by the statutes under consideration is in shifting the legal presumptions as to the matters covered by their language. To such matters, when the record is silent, the courts are now required to apply the maxim Omnia prcesumuntur rite esse acta. Nor does it seem to us that there is any thing of hardship or injustice in this requirement. It should not be presumed in the first place that the Circuit Court will permit accused persons to be tried in violation of law, or will fail to extend to them the benefit of every safeguard to which they are legally entitled. Still less should it be presumed that they themselves are so ignorant or so friendless as to submit to trial without demanding and receiving- the protection of those safeguards. If such has been the case, it will surely occur to them or their counsel or their friends to have the matter brought to the attention of the court at some time during the term, and, by motion or otherwise, have the wrong corrected, or at least a memorial made of it, so that it may be reviewed and reversed by the appellate tribunal. In the case at bar, for instance, we cannot suppose as a matter of fact that the relator was tried upon an indictment that was never brought into court, which had been framed- by a body of men which assumed to act as a grand jury without having been elected, impanelled, sworn, or charged, which had no foreman to preside over its deliberations, and no officer to attend; or that the accused was absent during the whole progress of the trial, except at the arraignment. The record shows that he was defended throughout by able and experienced counsel, who would not for a moment have submitted to such a proceeding, even if the court would have permitted it; or if, as a stroke of policy, the counsel had passed it over in silence during the trial, they certainly would have taken advantage of it after conviction. It is evident, we think, that, in truth, all the requirements of law were complied with, but, owing to the ignorance or carelessness of the clerk, there was a failure to note them on the record. Some weeks after the adjournment of the term, counsel, discovering these omissions, sued out this writ of habeas corpus, to have declared null and void a proceeding to which, during its entire progress, they had offered no word of objection. It was to prevent such action that the statutes under review were passed. Judgment affirmed.