Fleming v. State

60 Miss. 434 | Miss. | 1882

Campbell, C. J.,

delivered the opinion of the court.

The record shows an indictment for murder duly returned into court by a competent grand jury, and “filed,” as required by law, and that the venue'was changed to Calhoun County on the application of the prisoner, and a transcript of the proceedings in the case in Yalobusha County, where the indictment was found, was duly certified, and transmitted by the clerk of the court in Yalobusha, and was received, and filed in the office of the clerk of the Circuit Court of Calhoun County, where the trial was had and the judgment rendered which is now complained of. It is true that the record does not show a proper organization of the court in Calhoun County, or where it was’ held, or what judge presided, or whether any judge was present; but looking through the whole record, and the clerk’s certificate thereto, we discover that the trial and conviction were had in the Circuit Court of Calhoun County, where the case stood for trial by virtue of .the change of venue ordered on the application of the prisoner, and that the errors now complained of were not made a ground of special exception in the court below, and all of the errors assigned having respect to the grand jury, and the organization of the court, and the like, are unavailing here because of sect. 1433 of the Code of 1880, which had the just effect to create the presumption here on appeal that all things were rightly done in the trial and conviction of the appellant, who must show that he made complaint specially iu the court below of the very matter of which he would take advantage in this-court, else it shall not avail him. Spivey v. The State, 58 Miss. 743. In the case cited it was said, speaking of the statute cited, that the law is founded in the reasonable presumption that the trial “ court will do all things right or that the person sought to be tried, condemned and punished will make every available objection to the proceeding against him, and make a memorial of such objection for use in this-court in its review of the proceedings; and, if the accused finds nothing to object to in the progress of the case in the Circuit Court, and the record here does not show that he made objection in that court, this court must assume that nothing occurred below to which he could object, and the judgment of the Circuit Court must stand.” It was further said in that case, if the transcript filed here “ shows a trial, and verdict and judgment in the court below, and nothing more, the presumption established by the statute that the judgment is correct must prevail, and it will be affirmed.”

We approve the doctrine announced in that case, and adhere to it. We thereby effectuate the object of the statute, which was to close the door against the general jail delivery resulting-from the former doctrine that the record must show affirmatively everything necessary to a valid trial, failing in which the judgment was set aside, many times to the defeat of justice and scandal to the administration of the laws against crimes. This statute introduced a new era and established the reign of common sense in the administration of the criminal law in this court. It impinges on no principle of justice,, and in no degree violates any right of the accused. It simply says, you shall not overturn, on appeal, the conviction had in-the Circuit Coui’t except for something to which you made objection there. It is a most wholesome statute, remedial of a great evil, and we will construe it liberally to accomplish the very proper purpose in its enactment.

We have discovered nothing in the instructions given for the State to condemn them. It is true of this case as of all others in which it was ever attempted, that the effort to define and make clear to the understanding the idea of that undefinable thing a reasonable doubt, was a failure, and well calculated to darken counsel; but it is impossible to say that wrong was done the prisoner by this effort to perform the impossible.

We cannot say that the instructions asked by the prisoner and refused were erroneously refused, for we do not know whether the evidence made them proper or not. For all that appears, the evidence may have made proper the giving of the instructions asked by the State and the refusal of those refused to the prisoner.

The last instruction for the State is in accord with the decision of this court in Green v. The State, 55 Miss. 454. Urged by counsel, we have reconsidered the question, and fully approve the rule announced in that case. It is the only practical rule, and besides is the true one on principle, as we think. The re-enactment of the statute interpreted in that case, with that interpretation of it, may be justly regarded as a legislative sanction of it. Nor is there anything severe and cruel in it. The punishment of murder fixed by law is death. He who is found guilty of murder should suffer death, unless the jury affix the other punishment allowed. If they agree that the accused is guilty, they should not fail of a verdict because of their inability to agree on the punishment they may affix. If agreed on guilt a verdiet should be rendered at all events, so that the penalty affixed by law to such guilt may be suffered, and a verdict should not be defeated because of want of unanimity among the jurors as to a particular punishment. The ascertainment of guilt is one thing; the consequence of it is another. The prescribed legal consequence of guilt of murder should follow, unless the jury agree on a different punishment, which it may affix. It would be unfortunate for one about whose guilt there is no dispute to escape the penalty prescribed by law for his crime because of disagreement as to the penalty he should suffer. The law regards the penalty it has prescribed as the proper one, and deems it no wrong to insist on its infliction except where the body to whom it is committed concurs in a different result.

Affirmed.