69 Tenn. 596 | Tenn. | 1878
delivered the opinion of the court.
This is a proceeding by mandamus, asking the Circuit Judge of Davidson county to cause defendant, a justice of the peace, to examine the witnesses, on a charge of murder, reduce their testimony to writing, have it signed, and take the recognizance of material witnesses, to appear for the State on further prosecution of the case.
The facts of the case are. that two warrants in the
Thereupon the attorneys for the prosecution demanded that the testimony should be heard by the magistrates, and the same should be reduced to writing, as required by our statutes. After argument of the counsel on both sides, the court, or justices, were of opinion that the defendant having waived an .investigation and demanded to be re-committed to jail, without bail, was entitled to do so. Therefore they adjudged said Langham should be remanded to jail, to await his trial at the next term of the Davidson county Criminal Court, to-wit: .at January term, 1879 — they entering the proper judgment, that the offense of murder had been committed, and there was probable cause to believe the defendant guilty thereof, etc. — and the papers were regularly filed with the clerk of the Criminal Court.
The question is, first, Was this a correct practice? ;and secondly, Whether the remedy by mandamus is
The sections of the Code bearing on this question are substantially as follows: Section 5056, under title “Mode of Examination,” provides, at the examination the magistrate shall examine the witnesses for the prosecution on oath in the presence of the defendant, and such other witnesses as may be produced by the defendant. By the next section, it is enacted, after the examination of the witnesses for the State is closed, the magistrate shall inform the defendant that it is his right to make a statement in reference to the charge made against him, or that he may waive the same; and such waiver cannot be used against him on the examination before the magistrate or on trial. If the accused choose to make such statement, the same is to be taken down in writing, read over to him, and signed by him, or if he refuses to sign it, his reasons for such refusal stated. Then follows the questions that may be put to him. After the waiver of defendant of his right to make a statement, or after he has made it, his witnesses, if he produce any, may be sworn and examined. By section 5062, it is there-provided, that the evidence of the witnesses examined shall be reduced to writing by the migistrate, or under his direction, and signed by the witnesses respectively. Under a previous chapter of the Code, we find by section 5017, that no person can be committed to prison for anj' criminal matter until examination thereof be first had before some magistrate. By section 5018, the magistrate is required to reduce the examination
Upon these provisions of the Code, it is apparent they are intended and do regulate the trial of a case of the kind now before us, on the assumption, probably, that in every case there would be a contest; that a person accused would not go to prison, or be held to bail without having a case made out against him, justifying it by competent testimony.
In that event, the regulations are simple and easy to be understood in connection with other provisions of the Code. The issuance of the warrant of arrest is provided for, by which the party is to be brought before the magistate, opportunity to secure counsel, continuances, and then the mode of conducting before the court the .trial, investigation, or “examination,” as it is called, of the case, or charge on which the party has been arrested, with a view to his discharge, or to further proceedings, in all felony cases, before a court having jurisdiction; finally to determine upon the guilt or innocence of the accused. The action of the magistrate on this trial is but preliminary to this final proceeding, and we may add; in several aspects in aid of, and connected with, the future proceedings provided for by our law.
I cannot assent to the argument of the defendant in this case, that section 5018, providing that the’
Taken in connection with the other sections of the Code more specifically regulating this subject, I think it clear, this refers alone to the personal examination or interrogatories which the magistrate may make, or put to the accused with his consent, as provided by section 5059 and sub-section, and which the next sec-lion provides l>e may waive, or rather says so by implication, by saying “after waiver, etc., witnesses -may be examined for the defendant.”
This is shown by the further provision in section 5018, that the court shall not only reduce the examination of the accused, if he submits to one, to writing, but also the evidence adduced on .both sides— thus distinguishing between examination of the accused and his trial; because if tried, whether he submits to answer the interrogatories or not, or makes a statement as provided for, still the magistrate must reduce the examination of the witnesses introduced to writing. A trial may be had as well without, as with an examination of the accused, or statement from him. In addition, the latter part of the section goes on to provide, the magistrate is authorized to “discharge, bail, commit the accused, and to take all recognizances to
If witnesses are not examined, their recognizances cannot be taken, and their appearance made more certain for the future purposes of the trial; for he is to. do this only as to “each material witness examined by him on the part of the State.” He can only know their materiality by hearing their testimony. In view - of the migratory character of our population, and the additional fact that in many, perhaps a majority, of cases, crimes are committed in the midst of the most unreliable of our population, in this respect, around our saloons, or other haunts of vice, we can see the importance of having the testimony secured for the use of the State, by compliance with the requirements of the statutes we have cited.
We cannot but feel the force of the argument of this court in the case of Johnson v. The State, 2 Yer., 59, in maintaining the propriety of the rule, that the deposition taken under the statute in presence of the prisoner could be read on the trial of the case before a jury, in case of the death of the witness — that the death of the witness may amount to acquittal of the prisoner, and the inducement to procure such death,
If the testimony is taken down and preserved for further use, this temptation to make way with witnesses is removed. If the recognizance of the witnesses is taken to appear at court, it will be, at any rate, less easy to procure their absence by improper means. It is impossible to enforce the demands of justice without testimony, and every provision of our law tending to secure this essential feature of a* trial, should be sedulously guarded by our courts and steadily upheld. Mere mawkishness in favor of an accused party, should not make us relax any of the means provided by our Code which tend to give supremacy to law, and protection to the citizen, by enforcing its sanctions against offenders. All .experience teaches that law can alone be effective to protect, by sternly, certainly, and speedily enforcing its penalties. These can be enforced only after a trial and conviction, and conviction can only be had upon testimony. Therefore, all that tends to secure this essential element of conviction, is of supreme importance, and demands to be carefully preserved by the courts.
The requirements we have cited, in view of the rule that in the event of the death of the witness, the deposition thus taken may be read on the trial, become matters that in future and possible contingencies, may be so essential to the enforcement of the law, that if neglected, there may be an entire failure of justice, and the worst, criminal, who has trampled
I am aware it may be said, why go to the trouble and delay of a trial or examination of witnesses for the State, when defendant concedes the result in advance? I might answer, it is sufficient that the statute has provided for it, in my opinion. When I look at its provisions, I think I see an imperative reason why a court should not make compliance depend on the option of the accused, and which exclude it. By section 5062, “The evidence of the witnesses examined shall be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively.” This looks to a careful preservation of this testimony, and its authentication by the signature ■of the witnesses. The officer is to reduce it to writing, or it must be done under his direction. Each witness must sign his deposition.
It is then certainly intended this should be done, not for the convenience or advantage of the accused, but evidently that it may be preserved in an authentic form. It is not certainly necessary to do this for any of the purposes of the preliminary trial, for his guilt or innocence may as well be determined without the testimony thus preserved and carefully authenticated, as when it is done. To give these requirements any meaning, I am compelled to assume that the Legislature has required the preservation of the testimony thus authenticated for ulterior uses. ■ When I see such uses, as in case of the death of a ’ witness, I see a reason, it seems to me, sufficient for the re
This brings us to the second question, whether, on. the facts of this case, a mandamus is the proper and effective remedy?
It is said to be a general rule, that, whenever a statute gives a power to, or imposes an obligation on, a particular person to do some particular act or duty, and provides no other specific remedy on non-performance, a mandamus will lie. 6 Col., 330, citing Tap-pan on Mand., 80-30. In the case of a judicial officer, when he fails or refuses to act, he can be compelled to proceed, and under same judgment in the case before him, but if it be an act judicial in its character, the court cannot direct how it shall be done, that is, what judgment he shall render — he will simply be compelled to act, to discharge his duty; otherwise, there would be a failure of justice. 6 Col., 81; Moses on Mand., 17-18.
It is obvious from these principles, that the case must be one where at the time the mandamus issued
In this view, whether we say the duty in the case is strictly judicial or ministerial, the case has passed beyond the control of the defendant. He no longer has jurisdiction of the case. He has, in my opinion, acted erroneously in refusing to hear the testimony offered by the State, but mandamus does not lie to correct erroneous actions. He cannot now be directed to cause the accused to be again brought before him for trial. The Circuit Court now has control and jurisdiction over him.
IVe know of no power the magistrate would have to order him out of the jurisdiction of that court and bring him before him again to be re-tried for an offense upon which he has already acted and given judgment, and by it, transferred the party to another jurisdiction, which certainly has complete power over him to proceed, notwithstanding irregularities in the action of the magistrate before whom the preliminary steps were taken.
For these reasons, we think the petition should be dismissed.