56 Miss. 793 | Miss. | 1879
delivered the opinion of the court.
James E. Turbeville was city tax-collector of Yazoo City. Having collected from Fountain Barksdale, a tax-payer of said city, the full amount of taxes due by him, as shown on the assessment-book or roll of said city, he thereafter so altered the figures showing the value of Barksdale’s taxable property as to make a difference of $9,000 in the value, and a difference of $119 in the amount collected by him. By the book, thus altered, he settled his own accounts with the city. He was indicted for forgery, under sect. 2582 of the Code, by which it is declared that every person shall be deemed guilty of forgery “who, with intent to defraud, shall make any false entry, or shall falsely alter any entry made in any booh of. accounts, kept in the office of the auditor of public accounts, * * * or in any other public office, by which any demand, * * * either against or in favor of this State, or
The indictment charged the accused with altering ‘ ‘ an entry in the book of accounts of the assessment of persons and property, real and personal, in Yazoo City, and then and there kept in the public office of assessor and collector of taxes of Yazoo City.” The indictment was demurred to, on the ground that tbe city assessment-roll was not “ a book of accounts ; ” and, the demurrer being overruled, the same point was subsequently made by objections to evidence.
The court below rightly ruled that the assessment-lists, usually called “rolls,” constituted “a book of accounts.” It was proved to be, in form, “ a book,” one of the definitions of which, as given by Worcester, is, “ a collection of paper leaves, sewed or bound, used for any kind of writing.” That it is used, by law, for keeping the accounts of the municipality against the tax-payers, as well as to show the state of accounts between the city and its collector, we know officially, as well as by the proof in the record; so that, in every point of view, the court properly ruled, that, within the intendment of the statute, the assessment-roll was “ a book of accounts.”
After the testimony in the case had been closed and the written instructions given, and during the arguments of counsel to the jury, the judge left the bench and stepped into a room immediately adjoining and in the rear of the bench, and separated from it only by the thickness of the wail, through which a door opened. He placed a member of the bar on the bench, with instructions to call or notify him if needed. He remained in this room, thus absent from the bench, and distant from it, as the bill of exceptions shows, five or six feet, during the greater portion of the time consumed in the several addresses of counsel to the jury. It does not appear whether the door which opened from the bench, or rostrum, into this room (styled the judge’s retiring-room) was closed or open while the judge was thus absent. This conduct of the judge is
If we could consider this statement of the facts as showing such absence from the room on the part of the judge as constituted even a temporary relinquishment of the control of the court and of the conduct of the trial, we should unhesitatingly reverse the judgment. There can be no court without a judge, and his presence, as the presiding genius of the trial, is as essential during the argument as at any other time. We do not mean to say that he must actually listen to every word that falls from the lips of counsel while they are addressing the jury, for this might impose a burden too heavy to be borne, but we do mean that the conduct and control of the argument within legitimate limits is confided to him as a judicial duty, and cannot be by him devolved upon another. While he will not be precluded from changing his seat to any portion of the room he may prefer, or from temporarily engaging in conversation, or reading, or writing, he must remain within hearing of counsel, so as to be able instantly to assert his authority, if demanded by any thing that may occur. While it will rarely be necessary or proper for him to interfere with counsel, instances may arise that will require it; and, moreover, the conduct of the jurors, spectators, or officers of court may be such as to demand the instant interposition of his authority. In civil cases, or prosecutions for misdemeanors, he may give place to another by consent, and if he does so without objection in advance, consent will perhaps be presumed ; .but in prosecutions for felonies, no consent can be given, and if given, it will not be binding on the accused. The bill of exceptions in this case fails to show clearly that there was any relinquishment, by the judge, of the functions of his office, or any such bodily absence as prevented their instant assertion when demanded: and we decline, on this account, to reverse the judgment.
It is assigned for error that the district attorney, in his closing argument, indulged in appeals to the race prejudices
Affirmed.
