76 Miss. 387 | Miss. | 1898
delivered the opinion of the court.
The statement in the record touching the refusal to call Wygle is as follows: “After exhausting the regular venire, and before and after the regular jurors were exhausted, counsel for defendants requested that J. T. Wygle, who was absent on the regular call of the venire, be called into the jury box. The court refused the request, and ordered the sheriff to go to the country, to which the counsel for defendants excepted.” My brethren think that this statement does not sufficiently show that Wygle was present in the courtroom when the request was preferred, and hence that there is nothing in this assignment. I think it does sufficiently show that he was so present. We all agree, however, that if he was so present, the court did err, but that the error would not, on the whole case disclosed by the record, be reversible error. Though the jury laws are directory, and the defendant has no vested right to any particular juror, yet in a case where the refusal to call a venireman in the circumstances here pointed out as existing by the assignment of error, could be shown to have worked material harm to the defendant, we would unhesitatingly set aside the verdict. The trial judge must be careful not to infringe the substantial rights of the defendant in a matter so vital. Directory statutes may not be administered so as to deprive any defendant of due process of law. But, looking to the whole record, we do not think the appellants have been harmed by the action of the court in this matter if Wygle was present.
It is also assigned for error that the district attorney was allowed to cross-examine the defendants as to what they had testified to in the committing trial before the justice of the
The principle invoked to show that this was error is the doctrine of Jackson’s case, 56 Miss., 312, to wit: that “no statement made upon oath in a judicial investigation of a crime can ever be used against the party making it, on a prosecution of him for the same crime. Jackson had been used as a witness for the state, as Farkas was (60 Miss., 848). The reason underlying all cases of this sort, where the defendant had been sworn by the state as its witness, involuntarily, as well as all those cases where a defendant before a committing magistrate, in giving his confession, was by the magistrate improperly sworn, was—prior to statutes making defendants competent witnesses in their own behalf—that the oath was a legal compulsion, which, with the fear of the consequences of perjury before his eyes, rendered such confession under oath, or such testimony under oath involuntary. This, precisely, is the true ground upon which this principle rested, as variously shown in Jackson v. State, 56 Miss., 312; Farkas v. State, 60 Miss., 848, and cases cited; The People v. McMahon, 15 N. Y., 384; 1 Arch. Grim. Pl. and Pr. (Pomeroy’s Ed., 1877; top page 386, side page 126; Hill v. State, 64 Miss., 440; Commonwealth v. Clark, 130 Pa. State, 650; People v. Mondon,
But since the passage of the act making defendants witnesses in their own behalf (February, 1882—•§ 1741, code 1892), this principle has undergone necessary modifications. When defendant now offers himself voluntarily as a witness in his own behalf in any form of judicial investigation, when charged with crime, he thus assuming of his own accord the character of witness, must accept all the incidents and responsibilities attaching to the character of witness. And in such case, if his sworn statement has been reduced to writing by a coroner or magistrate, it may be offered against him in the trial in the circuit court, and if not, he may be contradicted by witnesses who heard his testimony thus voluntarily given. This is settled in this state and elsewhere. Hill v. State, 64 Miss., 440; Com. v. Clark, 130 Pa. St., 650; People v. Kelly, 47 Cal., 125; Wharton Crim. Evi., secs. 668, 664; 1 Taylor Evi., sec. 889; State v. Eddings, 71 Mo., 545; State v. Glass, 50 Wis., 218; Wolf v. Com., 30 Grattan, 833; Com. v. Broaf, 126 Mass., 42.
It is to be noticed that Farkas’ case, supra, was rightly decided, but put on the wrong ground. The court overlooked the fact that the killing there occurred after the passage of the act of February, 1882. The true ground is given in Hill v. State, supra, where the Farkas decision is put right.
Whether a confession before a magistrate, provided for by § 1463, code 1892, if under oath, would be admissible against him, taking § 1741 and § 1463 together, is complicated by the fact that § 1463 forbids it to be taken under oath. Really, this inhibition is now^—since the act of February, 1882—a legal solecism, and ought to be stricken out by legislative amendment, leaving such sworn confession competent, if the defendant volunteered to be sworn, otherwise not. But we decide nothing on this point, not now before us. It is still true, of course, that when the state compels a defendant to testify
In this case, we see nothing in the record to liken this case,' in this regard, to Farkas’ case. There is nothing to show that the defendants did not voluntarily offer themselves before the coroner and the magistrate, voluntarily assuming the character of witnesses in their own behalf. In the absence of such showing, the presumption is that the magistrate and the coroner proceeded in their examination legally. Wright v. State, 50 Miss., 332. And it is not pretended that there was any confession before the magistrate; they simply testified as witnesses in their own behalf.
The, evidence might warrant a verdict of murder in some of its phases, and appellants cannot, in that view, complain of the more merciful finding. We see no reversible error.
Affirmed.-
