51 Miss. 652 | Miss. | 1875
delivered the opinion of the court.
The plaintiff in error was indicted, tried and convicted in the county of Colfax, under § 2508 of the Code, which provides that, “if any person, knowingly, shall mark or brand any animal, the property of another, with a mark or brand not that of the owner, without the consent of the owner, or without authority of law, he shall, on conviction thereof, be imprisoned* in the penitentiary, not more than three years, or be fined in a sum not more than five hundred dollars, or imprisoned in the common jail for a period not longer than one year, or both, in the discretion of the court.”
Hpon the verdict, the accused was sentenced to imprisonment
In support of the first proposition, it was argued that this statute combines in one act a felony or a misdemeanor, without any line of demarkation or means of determining the grade of the offense, except in the discretion of the court. To maintain the other, it was proposed to prove by parol evidence, that the recital in the record of atrial by jury was not true. This evidence was rejected, and the relator was remanded to the custody of the sheriff, to be held in obedience to the conviction and sentence. Thereupon, the relator appealed to this court, and assigns for error, the action of the chancellor in refusing to hear the evidence offered contradicting the record, and remanding the relator to custody.
That the record imports absolute verity is a rule too well established in reason and by adjudication to be now questioned. If the contradiction or impeachment of a record by parol evidence were to be permitted in a single instance, the vaule of records would be utterly destroyed. With a solitary precedent, sanctioned by this court, there would follow a train of evils utterly impossible to estimate. Litigation would have no limit; the rights of parties would be without a final resting place; the sanctity and verity of records would give place to all the uncertainties, imperfections, infirmities and conflicts of the human mind; and the courts would be powerless to render any adjudication permanent. The rules of law upon this subject are founded upon these evident principles, or axioms, that it is for the interest of the community that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination. 1 Greenl. Ev., § 522. See, also, 1 Ph. Ev., C., H. & E. notes, 581; 2 id., 2; 3 Bac. Abr., 583; 1 Ch. Bl., 319, side page; 2 id., 25, top page.
No rule of law is older than the one indicated. Its antiquity is beyond ordinary research.
In Coke upon Littleton (by Thomas, vol. 3, 548, top p., book 3, ch. 10), these very interesting paragraphs are found: “Judgment, judicium est quasi juris dictum, the very voice of law and right, and therefore, judicium semper pro veritate accipitu. The ancient words of judgments are very significant. Gonsideratum est, etc., because that judgment is ever given by the court upon due consideration had of the record before them. Judgment, judicium est quasi juris dictum, so called, because so long as it stands in force pro veritate accipitu, and cannot be contradicted. And thereupon, antiquity called that excellent book in the exchequer, Domesday, Dies judicii.” See note, Tayler’s Law Glossary, 152.
Another early English author says: “Records are the memorials. of the proceedings of the legislature, and of the king’s courts of j ustice, preserved in ■ rolls of parchment, and they are cpnsidered of such authority that no evidence is allowed to contradict them. A record imports such absolute verity, that no person against whom it is admissible shall be allowed to aver against it.” 2 Ph. Ev., C., H. & E. notes, p. 2, and cases cited in note 1.
Judgments and verdicts in the superior courts are always of record. They have, therefore, the'character which belongs to all records, that they are not to be contradicted by evidence.” 2 Ph. Ev., C., H. & E., notes, p. 2, and cases cited in note 1.
Blaclrstone says: “ Records of the court are of such a high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes.” Chitty’s Bl., vol. 2, top p. 21. And the same writer says: “A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matters.” Chitty’s Bl., vol. 1, p. 281.
The evils that would follow favorable action upon the proposition of the appellant, it would be in vain to attempt to enumerate. They can be faintly conceived by a consideration of the almost numberless interests of the people, wherein light controversies arise. If the final judgments and decrees of the courts in these varied contests were allowed to be impeached by parol evidence, trade and commerce would be thrown into confusion, and chaos would reign over the business transactions of the community.
The proposition that the statute involved is unconstitutional is as untenable as the others. If the point made, that this statute devolves upon the court a discretion to punish by imprisonment in the penitentiary or in the county jail is valid and fatal, the same objection exists to numerous sections of the Code of 1871, following the Code of 1857. Code, §§ 2496, for willfully setting fire to the various structures, or articles of property enumerated ; 2512, for accepting a bribe; 2513, a like penalty upon jurors, arbitrators or referees for taking a bribe; 2514, as to inspectors, clerks and canvassers at elections; 2517, for compounding or concealing felonies ; 2518, the same; 2544, for intimidating an elect-
It was proposed to prove in this case, by parol evidence, that there was no jury trial; that a jury was impaneled, but by agreement of counsel, the case was withdrawn from the jury, and submitted upon the law and the facts, to the court, whose finding as to the, guilt or innocence of the accused was to be entered as upon the verdict of the jury. This wa,s done and the cause conducted to a conclusion without any objection or exception thereto. There was a motion for a new trial, but this action of the court was not included as a ground therefor, nor was the attention of the court, called thereto in any way. No complaint was made of this in any form in the original cause, and not until after its conclusion, when the discharge of the accused was asked on habeas corpus.
It is now contended by counsel that this was a fraud which vitiates, and for which the judgment may be impeached. The action of the court was in accordance with the agreement of counsel, who declined to make it a ground for a new trial.
Between this case and the facts of those relied on by counsel, wherein fraud is held to vitiate the judgment, the distinction is clear and well defined. Campbell v. Brown, 6 How., 114; Hurd v. Smith, 5 id., 563; Niles v. Anderson, id., 386; Ross v Lane, 3 S. & M., 713; McCombs. Ellett, 8 id., 519; Person v. Nevit, 32 Miss., 181; Fairly v. Thompson, 34 id., 104.
If there was any fraud, it was upon the court.
Affirmed.
