Opinion
No. 28936.
November 10, 1930.
1. CRIMINAL LAW. Demurrer to plea of former jeopardy on ground that supreme court had held that instruction directing acquittal should have been given at former trial held properly sustained.
Constitution 1890, section 22, provides that there must be an actual acquittal or conviction on the merits to bar another prosecution.
2. CRIMINAL LAW. Court's suspending trial for manslaughter to following morning at district attorney's request held not prejudicial to defendant.
During progress of trial, district attorney discovered that he could not, under rulings of court, prove death by employees of hospital whom he had summoned for that purpose, whereupon court, at his request, suspended trial from 11:15 A.M. to 9 o'clock the next morning, at which time trial was resumed.
3. CRIMINAL LAW.
In manslaughter prosecution, permitting nurses to identify entries made in deceased's record as patient in hospital, not introduced in evidence, held harmless.
4. HOMICIDE.
Court properly confined testimony regarding defendant's reputation for peace to proof thereof before commission of crime charged.
APPEAL from circuit court of Coahoma county, Second district. HON.W.A. ALCORN, JR., Judge.
J.M. Talbot, of Clarksdale, for appellant.
In a criminal case where defendant requests a directed verdict which is overruled by the trial court, but on appeal the supreme court holds that a verdict should have been directed for the defendant by the trial court, the defendant has been placed in jeopardy and on a second trial a plea of former jeopardy should be sustained.
Harris v. State, 124 So. 493; Washington v. State, 124 So. 480; 1 Bishop on Criminal Law (9 Ed.), p. 771, pars. 1044-45-46-47; State v. Moor, 1 Walker 134; Cherry v. State, 103 Miss. 225, 60 So. 138; Smithey v. State, 93 Miss. 257, 46 So. 410; Finch v. State, 53 Miss. 363; Teat v. State, 53 Miss. 439; Whitten v. State, 61 Miss. 717; Hill v. State, 120 So. 817; Jones v. State, 144 Miss. 52, 109 So. 265.
We concede that the action of the court in suspending the trial of this case at eleven o'clock in the forenoon of the second day of the trial until nine o'clock the next morning was a matter of discretion with the court, and that this court will not disturb the action of the trial court unless it appears that the discretionary powers were abused. We earnestly submit to the court that this action of the trial court was a gross abuse of such powers.
Section 26 of the Constitution of 1890; Nixon v. State, 2 S. M. (10 Miss.) 497; Long v. State, 52 Miss. 23; Walton v. State, 87 Miss. 296, 39 So. 689; Knox v. State, 97 Miss. 523, 52 So. 695; Walker v. State, 129 Miss. 449, 92 So. 580.
Defendant in order to be entitled to a continuance must exercise diligence in procuring process for his witnesses, and the same rule should apply to the state.
Thomas v. State, 61 Miss. 60; Ware v. State, 133 Miss. 837, 98 So. 229; Donald v. State, 41 So. 4.
Grave and prejudicial error was committed by the court in permitting the hospital records which were not properly identified, never introduced in evidence, to be paraded before the jury, and the witnesses from the hospital to testify therefrom.
Wooten v. Railroad Company, 89 Miss. 322, 42 So. 131; Chicago Railroad Co. v. Provine, 61 Miss. 288; Foster v. State, 70 Miss. 755, 12 So. 822; Dominges v. State, 7 S. M. 475, 15 Miss. 475; 16 Corpus Juris 743.
Testimony of good character is always admissible for the defense and is not only always admissible, for what it is worth, but if on the minds of the jury it produces a reasonable doubt, this doubt may be acted on.
Lewis v. State, 93 Miss. 697, 47 So. 467; Powers v. State, 74 Miss. 777, 21 So. 657; McDaniel v. State, 8 S. M. 401; Westbrook v. State, 37 Miss. 327.
Forrest B. Jackson, Assistant Attorney-General, for the state.
Where there was no actual acquittal on the merits there is no bar to the second prosecution.
Ethridge's Mississippi Constitution, pages 110-115; Section 22, Mississippi Constitution of 1890.
The granting of a continuance to either party is a matter within the sound discretion of the trial judge, and there will be no reversal of a cause unless there be shown an abuse of discretion to the prejudice of the defendant.
Cox v. State, 103 So. 129, 138 Miss. 370; Rule XI, Supreme Court of Miss.
The record from which it is alleged the witnesses testified was not introduced as a part of the testimony and is, therefore, not subject to the condemnation of the case of Wooten v. Railroad Company, 88 Miss. 322, 42 So. 131, and appellant fails to show any prejudicial error.
Rule XI of the Supreme Court of Mississippi.
Testimony as to reputation of a defendant is inadmissible where the witness' knowledge as to the reputation, good or bad of the defendant was charged.
Carlisle v. State, 73 Miss. 387, 19 So. 207; Rule XI of the Supreme Court of Mississippi.
Argued orally by J.M. Talbot, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for the state.
The appellant was convicted of manslaughter, and appealed to this court, where the judgment against him was reversed. Harris v. State, 155 Miss. 398, 124 So. 493. On the return of the case to the court below, he was convicted of manslaughter, and has again brought the case to this court.
After the reversal of the judgment herein by this court on the former appeal, the appellant filed a plea of former jeopardy, the ground of which is that on the former trial he requested, and should have been granted, an instruction directing the jury to acquit him, and that this court so held on the appeal thereto, from which his counsel argue that to try him again for the same offense would be to place him twice in jeopardy therefor. A demurrer to this plea was sustained by the court below, and it committed no error in so doing, one of several reasons therefor being that section 22 of the Constitution 1890 provides that "there must be an actual acquittal or conviction on the merits to bar another prosecution."
During the progress of the trial, the district attorney discovered that he could not, under the rulings of the court, prove the death of Gaden by the employees of the hospital whom he had summoned for that purpose, whereupon the court, at his request, and over the objection of the appellant, suspended the trial from eleven-fifteen A.M. to nine o'clock the next morning, at which time the trial was resumed. This suspension of the trial is said by counsel for the appellant to have been very prejudicial to him, one of the reasons advanced therefor being that the jury might have charged the appellant with the inconvenience suffered by them from the added length of the trial. The record discloses nothing remotely indicating that the appellant was prejudiced by the suspension of the trial, and we must presume that the jurors were men of common sense and decided the case without being influenced thereby.
The evidence discloses that the appellant struck George Gaden with an axe splitting his skull. Gaden lived several days thereafter, and was, on the advice of the physician who first attended him, sent to the state charity hospital, at Vicksburg, Mississippi. The physician testified that the appellant's wound, in his opinion, was mortal, but advised that he be sent to the hospital in the hopes that something might be done there to save his life. Gaden was carried to the hospital by Frank Morris, who delivered him to the receiving nurse, and told her who Gaden was. This nurse testified that she made a record of Gaden's entrance into the hospital, and carried him to ward No. 22 where he was placed in bed No. 20, that fact having been entered by her on Gaden's chart, or hospital record. Two of the nurses who waited on Gaden, or the man in bed 20 of ward 22, whose chart disclosed and the nurses understood to be Gaden, testified that he was suffering from a wound in the head, and that they knew of their own knowledge, that he died a few days after having been received into the hospital.
The usual patient's record or chart of the treatment administered to Gaden while he was in the hospital was kept by the nurses who nursed him, and the district attorney, over the objection of the appellant, proved the record by having each nurse making an entry thereon to identify this entry. Exactly what use the district attorney intended to make of this record is not clear, for the reason that it was not introduced in evidence. If he wanted the witnesses to refresh their memories by examining the entries made thereon by them, it was competent for them to do so, the entries having been made contemporaneously with the occurrence of the matters therein set forth. No reversible error, if error at all, was committed in this connection.
The appellant offered two witnesses who had known him only since the commission of the crime for which he was being tried. They were asked if they knew the appellant's reputation for peace and violence in the community in which he lived, but an objection thereto was sustained, the court advising counsel that the testimony of the appellant's reputation for peace and violence should be confined to proof thereof at and prior to the commission of the crime for which he was being tried. The appellant's counsel declined to, or rather did not, reframe the question so as to thus limit the testimony. This ruling of the court is in accord with the authorities. 16 C.J. 581.
Affirmed.