Helm v. State

67 Miss. 562 | Miss. | 1890

Woods, C. J.,

delivered the opinion of the court.

The plea of former jeopardy alleged that the jury, on the former trial, retired to consider of their verdict at 4.30 P.M., June 23, and were discharged on the morning of the 25th at 11.30. The sufficiency of time for due deliberation had, by this court, on the former appeal, been declared to be established prima faeie on this undenied allegation as to the length of time employed by the jury in deliberation. This allegation as to time was confessed and undisputed by the state on the last trial of the defendant’s plea. Its sufficiency for due deliberation, prima faeie, had been passed upon by this court affirmatively, and this prima faeie case was not destroyed by any evidence offered on the hearing of this plea of defendant ; and the propriety or necessity of submitting to the jury the question of the sufficiency of the time for due deliberation shown to have been consumed by the jury in considering the cause, is not apparent to us. The question of the time itself, was one of fact which really needed no proof, as no issue on the allegation of the plea, as to time, was raised by any pleading of the state: the manner in which the jury employed its time, and the facts showing whether there was legal necessity for its discharge, were questions for the jury’s determination.

The issue on which the jury passed, was clearly that of the existence of facts showing legal necessity for the discharge. Without dwelling in detail on the various steps taken to bring the pleadings to a definite issue, it is sufficient to say that the court finally and substantially submitted to the juiy this question of fact, viz., were the jury discharged on the former trial of defendant because they could not agree ? If the issue was found affirmatively, then the legal necessity was made out. If the issue was found negatively, then the legal necessity did not exist, and the prisoner was entitled to discharge. We are of opinion that the real issue was properly made up and submitted to the jury, and we are of the further opinion that the jury properly found the issue for the state.

This view seems, virtually, to be conceded to be correct by appellant’s counsel, for in discussing this branch of the case, we find this sentence in counsel’s brief: “ Time was susceptible of proof, and the court could decide upon its sufficiency, if the issue was left to the jury.” This is in perfect accord with our view. The time consumed by the jury was one of fact and susceptible of proof: the sufficiency of time for due deliberation was a legal question for the court, and one that was not to be submitted to the jury.

But it is insisted that the testimony of the trial judge who presided on defendant’s former trial below, as well as that of the jurors who were discharged on that trial, was improperly given to the jury. We are at a loss to imagine why the fads on which the trial judge acted in considering the question of legal necessity for discharge — the facts then in his possession, and which satisfied his mind that the jury could not agree, and the facts disclosed by the jurors themselves which demonstrated that they could not agree— were not competent evidence on the trial of the issue presented. It occurs to us that this evidence of the judge and the jurors was not only free from objection, but was the very best evidence that could have been offered.

As to defendant’s second plea of former jeopardy, we are of opinion that there was no error in the action of the court below, in its dealing with this plea. The defendant was arraigned and the verdict rendered on the original indictment. During the progress of the trial, it was ascertained that this indictment had been lost, and the state was permitted to substitute another indictment, then returned into court by a grand jury, at the time in session, identical with the lost one: but before the case had been given to the jury, the original indictment was found, .and was handed to the jury on its retirement, the substituted one having been withdrawn. The defendant was not in anyway prejudiced by this action; indeed it is impossible to conceive how any hurt oould have occurred to him by this course. We cannot bring ourselves to sanction for a moment the idea that whenever an indictment, which is a criminal pleading, is lost, or mislaid, or stolen, during the progress of a trial for a capital felony, that there can be no substitution of the missing paper, but that in every such case, there must follow the discharge of the prisoner. We hold to the reasonable rule that a criminal pleading, like any other, may be supplied by substitution, in some proper way — in the manner prescribed by law. ■

Touching the error alleged by defendant’s counsel, to be found in the refusal of the court to permit the witnesses, Johnson and Dickson, to testify to what King, the deceased, said after his wounding and before his death, we are of opinion that the action complained of was altogether proper. The record shows that this testimony was sought to be introduced as containing the dying declaration of the deceased; but this propsition is so palpably indefensible, that it is abandoned here, and its attempted introduction sought to be justified on the ground that they were declarations made against the declarant’s interest, and therefore admissible here, as in civil proceedings. ■ This doctrine has never received the sanction of any court, so far as we are advised, nor does the able and acute counsel offer any support derived from reason. We cannot see the slightest analogy between declarations made against interest by a suitor in a civil proceeding and declarations by a slain man, not made in articulo mortis under a sense of impending dissolution, and after an abandonment of all hope by the declarant. How any declaration can be said to be against the interest of a man already passed into the other world, and beyond the reach of every earthly tribunal and all earthly power, is wholly incomprehensible by us.

The assignment of error, which raises the disqualification of the juror Johnson because of his prejudice is not well taken. There is nothing in all the evidence on this proposition which is even persuasive to show that Johnson was not altogether competent to serve as a juror. The juror is not shown to have ever heard what the evidence, or any part of it, was before he heard it in the jury-box, and it seems impossible that he could have either formed or expressed an opinion as to defendant’s guilt in the absence of proof of any knowledge of the evidence. He is shown, fairly well, to have had not a favorable opinion of the character of the accused (and perhaps no better opinion of that of the deceased), but if a good opinion of the character of every accused person shall be held requisite for qualification for jury service, then the worst class of criminals must ordinarily go unwhipped of public justice. There was no hostility or unfriendliness to the man; there was, at the most, disapprobation of his unlovely character. But this did not and should not be held disqualification of the person as a juror. Nor was there such evidence of a preconceived opinion as will warrant us in saying the court below was not justified in refusing to believe that the juror, in this instance, was so biased as to unfit him for jury service.

The introduction of the record of the conviction of defendant’s witness, Misc. on a charge of larceny, of the taking a hog without felonious intent, was not error. Under § 1607 of the code of 1880, the record of the conviction of a witness of any “ crime” may be given in evidence, as affecting the credibility of such witness; and § 1305 declares that any “violation of law” is a crime, in the general sense in which that word is employed in § 1607.

It is contended for appellant that the refusal of the court to wait longer for the witness Defoor, that he might testify on defendant’s motion to recall the sentence and for a new trial, is also error. The judgment of the court below in overruling defendant’s motion for a new trial was made on the 9th day of December. In support of the motion for a new trial, a witness, Bell, testified that Defoor was present and heard the statements desired to be introduced as showing why sentence should be recalled and a new trial awarded, and yet no steps were taken by defendant to secure Defoor’s presence until the 12th day of December, though defendant and his counsel were both in court when Bell made his statement touching Defoor’s knowledge of the facts on this point. The court did await Defoor’s arrival until some time during the day following, and then, declining to wait longer, overruled the motion. There were two other persons who were said by the witness Bell to have been present and heard the statements, to testify concerning which Defoor was desired as a witness. These witnesses were duly subpoenaed and appeared, and neither were introduced by defendant in support of his motion. Under all the circumstances, we cannot say the court’s action was either arbitrary or unreasonable.

We deem it necessary to consider only one other assignment of error. The 9th instruction given for the state is in these words: “ If the minds and consciences of the jury are fully satisfied by all the evidence in this case that Helm was hunting King to kill him, armed with a deadly weapon provided for that purpose, and that when he found King he provoked a difficulty with King, or was the aggressor in the difficulty, in which he killed King, then he is guilty, even though he killed King in self-defense.” We see no error in this charge, under the facts proved on the trial. It is in complete harmony with the law as announced in Cannon v. The State, 57 Miss. 147, and in Allen v. The State, 66 Ib. 385. There could be no other rule of safety so long as the violent hunt up their victims to slay them. How shall a man be heard in a court of justice to discourse of the divine right of self-defense while his hands are yet red with the blood of the object of his malice, whom he has sought out for the purpose of killing him, armed suitably to accomplish his murderous design, but whom, having been found, he has provoked, or driven, into a rencounter and then put to sudden, cruel death ? Let it be understood, at any rate, that such plea of self-defense will not avail to save in this court of last resort.

The judgment of the court below was abundantly warranted by the evidence, and is approved by us.

Affirmed.