Opinion
October 11, 1948.
1. Indictment — omitting word "did."
An indictment which charges that the accused "within the jurisdiction of this court, unlawfully, wilfully, feloniously and of his malice aforethought, kill and murder," omitting the word "did," charges no crime, is void, is not amendable; and the point may be raised for the first time on appeal.
Headnote as approved by Montgomery, J.
Roberds and McGehee, JJ., dissenting.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.A. McFarland J.M. Travis, for appellant.
This brief was on the merits which the court did not reach or consider.
J. Larry Thompson, also for appellant.
Appellant stands before this Honorable Court, tried, convicted, and sentenced in a capital case, on an indictment which is not faulty to such an extent that an amendment would be possible; but absolutely void and of no effect in law whatsoever; not voidable, but absosolutely null and void, and such an indictment may be collaterally attacked at any time, and any where. This question can be raised in the Supreme Court for the first time, which, of course, is an exception to the general rule.
In the case of Hall v. State, 44 So. 810 (not officially reported), in an indictment precisely like the one at the bar of the Court, the word "Did" in that indictment was offered to be supplied by the District Attorney, after the State had announced ready for trial; and the Court said, "That where an indictment for murder, alleges that defendants "Wilfully, feloniously and of their malice aforethought, kill and murder one M. etc.," it was fatally defective, and could not be cured by the insertion of the word "did," after the prosecution had been called for trial. See Cent. Dig. Vol. 27, Sec. 505 514. In the Hall case above cited, our late lamented Judge Whitfield, said, "than on the authority of the case of Cook v. State, 72 Miss. 517, 17 So. 228, we are compelled to reverse this judgment and quash the indictment."
The Hall and Cook cases are the best authority on this point. No doubt, but that the Court's idea in this opinion was, that an indictment, wholly defective on its face, could not be amended, so as to cure a defect apparent on its face so fatally defective that rendered it void, that would have to be done by the grand jury that returned it; and if it was a nullity and void on coming from the grand jury, of course, such defect would have to be cured by the jury returning it, and not otherwise.
An indictment charging that "defendant on a certain day, then and there, feloniously, wilfully, and with malice aforethought kill and murder one J.B." etc., is fatally defective in substance, and the omission of some word or words before "kill and murder," without which no offense is charged, is not a mere "formal defect" under the code, providing that formal defects may be supplied by amendment. — Judge Wood, said in the Cook case, among other things in the form of a question; to-wit: Was the indictment a valid one, substantially charging a capital crime? or was it void, charging no crime and therefore assailable anywhere? If we recur to the indictment again, we shall see that, if we undertake to read into it some word or words ommitted, it will be manifest, that we will thus do what the grand jury has not done; that is, certainly and distinctly charge a specific crime. But even in doing this, we shall find ourselves driven to our election between two or more crimes." It appears that this rule and reasoning does not apply to misdemeanors, but only to capital cases. In the Riggs case, 26 Miss. 51, it was held that the omission or absence from the indictment of the two words "and there" was a fatal defect, because the words used, "and did then die," failed to make it clear that the death of the deceased occurred in Monroe County. In a case of arson it was held that an indictment was fatally defective, which failed to allege that the burning was done "wilfully and feloniously," and the Court held in that case, that no offense was charged. Jesse v. State, 6 Cushm. 100, Sarah v. State, 28 Miss. 267. In case of perjury the omission of the word "feloniously" in the indictment, was held by the Court to be a defect of substance, which rendered it void, Wile v. State, 60 Miss. 260. In the case of State v. Halder, 2 McCord 377, coming from abroad, an indictment charging that the defendant "feloniously" utter and publish, dispose of, pass, and put away, as true to one William Hunt, a certain false, forged, and counterfit bank note;" omitting the auxiliary verb "did" before the words "utter and publish" was held by that court to charge no offense, and was fatal.
In Admonson v. State, 41 Tex. 486, it was held that the omission of the auxiliary verb "did" in an averment of the indictment alleging the injury charged was fatal. Jones v. State, 21 Tex. App. 349[ 21 Tex.Crim. 349], 17 S.W. 424. It is said that an indictment "cannot be aided by intendment, nor omission supplied by construction," State v. Potter, 28 Iowa 554.
It is contended that some objection or exception should have been taken to the sufficiency of the indictment by appellant in the lower court, and if none were made there, upon failure to do so, it would amount to a waiver, and that appellant should not have the benefit of the defect appearing in the indictment by raising the question in this court for the first time; that it is often difficult to determine judicially whether the indictment is void or merely defective and amendable, and to determine this, calls for judicial action and skill, and that the policy of this State is, that if the question is to be raised at all, it must be raised in the court below, and that the defendant should not be permitted to gamble with the question, taking the benefit of an acquital, if he should be acquitted while having the certainty of reversal if he should be convicted" — We take the position that it it not a difficult question to determine judicially whether the indictment in this case is void or merely defective and amendable; if defective and amendable, then there may be some merit in the State's contention, and a demurrer, motion to quash or in arrest of judgment might have been proper and well taken: but if a nullity and absolutely void in its first, last and final analysis and throughout the whole trial in the lower court, and upon which appellant was tried, convicted and sentenced is different.
It is further suggested by appellee's counsel and much stressed that "If this matter had been called to the trial court's attention upon the trial, and a demurrer, motion to quash or in arrest of judgment had been interposed, it could have been sustained, and appellant re-indicted, or the matter referred back to the grand jury for proper indictment." This however can still be done with but little effort or delay, if this Honorable Court sees fit. It does appear from this record, that this would be the wiser course to pursue and by far safer, than for this court to so re-write and re-annuonce the law as already written on this point, and overrule cases of long standing which have carried sound principles and announcements of the law for so many years.
Let it be remembered that "Accused cannot waive objections to avoid indictment." The only question here on this point is, as to whether or not the indictment is sufficient or is it void? If void, then it most certainly is no subject of waiver by appellant, and cannot be waived, and this principle has long since been fully settled by our Supreme Court. In the Newcomb case, the court speaking through Judge Handy said in part "But the error insisted upon goes to the very essence of the offense. It is that the indictment is invalid, because in law, it charges no offense against the accused. If this position be correct, it is manifest that he could not waive the insufficiency of the indictment, by neglecting to raise any objection to it in the court below, so as to render a conviction rendered on it valid: for that would be, by mere silence to give legal sanction and validity to a criminal charge against him, when the indictment contained no such legal charge. On the contrary, the concluding clause of the article of the statute referred to, plainly shows that it was deemed necessary that the offense should be substantially described in the indictment and a defect in that respect was not intended to be embraced in the provisions of the statute." Newcomb v. State, 37 Miss. 383.
George H. Ethridge, Assistant Attorney General, for appellee.
Counsel who appears in this court but did not appear in the court below has raised the question that the omission of the word "did" in the indictment constitutes a void indictment and contends that the judgment should be reversed because of the fact that the indictment was insufficient to constitute a charge of any crime. Counsel relies on prior decisions of this court to support his contention, citing Cook v. State, 72 Miss. 517, 17 So. 228; Taylor v. State, 74 Miss. 544, 21 So. 129; and Herron v. State, 118 Miss. 420, 79 So. 289. I submit that the case should not be reversed on this record because the statute plainly requires by Section 2449, Code of 1942, that defects occurring on the face of the indictment shall be taken by demurrer to the indictment and not otherwise before the issuance of the venire facias in capital offenses and before the jury shall be empaneled in all other cases and not afterwards and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended and thereupon the trial proceed as if such defect had not happened. I call the court's attention to the fact that the statute positively required the defects or objection to the indictment appearing on the face thereof to be taken by demurrer and not otherwise. There is no demurrer whatever in the present case and had objection been taken by demurrer the court could have sustained the demurrer and had the grand jury re-investigate the killing, and if necessary, a new indictment be returned. Often it is a very difficult question to determine judicially whether the indictment is void or merely defective and amendable, and this calls for judicial action and skill and the policy of the statute is that if the question is to be raised at all it must be raised in the court below. In other words, this court reviews the action of the court below and should give effect to the words "and not otherwise" contained in the section which precludes any other method from raising such questions at all and the defendant should not be permitted to gamble with the question taking the benefit of an acquittal if he should be acquitted while having a certainty of reversal if he should be convicted. The trial proceeded without objection anywhere during the trial on the indictment. After the conviction a motion for a new trial was filed without setting out the defects of the indictment therein so as to give the trial judge the right to pass upon the question judicially in the court of original jurisdiction. There was no motion to arrest judgment in the case at the trial or any time prior to the appeal nor any by the astute counsel who represented the defendant in the court below. I think the cases relied on by the appellant should be limited so as to require that at least the trial court should have the opportunity to consider the questions and that they should be called to the attention of that court and not be reversed on appeal where they were not raised in any manner in the court below. If the court misconstrued this statute it should correct it so as to carry out the legislative purpose and the legislative purpose was, clearly, to limit the raising of the sufficiency of the indictment by any method or manner other than demurrer where the defect appears on the face of the indictment. In like manner Section 2450, Code of 1942, requires all objections to an indictment upon any defect dehors the fact thereof presenting the issue to be tried by the court shall be taken by motion to quash the indictment and not otherwise within the time allowed for demurrer and with the right to amend as provided in the last section dealing with the demurrer. The case of Cook v. State, 72 Miss. 517, 17 So. 228; Taylor v. State, 74 Miss. 544, 21 So. 129; and Herron v. State, 118 Miss. 420, 79 So. 289, have often been severely criticized. It is doubtful that anyone would be misled by the indictment in the present case and in the indictments in the above cited cases. Every person reading the indictment not highly trained and especially skilled in technicalities would fail to understand that the defendant in each of the cases was charged with murder by doing the act or acts which constitute murder. The indictment might be criticized in grading students on composition and rhetoric by school teachers but no other person, I submit, other than skilled lawyers and careful teachers would find fault with the indictment or fail to understand what the person was charged with. The fact that the learned district attorney, the learned counsel for appellant, in the court below, and the careful circuit judge did not note the absence of the word "did" from the indictment strongly indicated that the pronouncement in the Cook case and cases following it are hypercritical and that can be safely modified and justice promoted by requiring counsel, as the statutes seem to require, to at least raise the objections in the court below prior to trial.
Danny Kelly was convicted of murder in the court below and sentenced to life imprisonment from which he appeals.
The indictment, omitting the formal parts, reads as follows: "that Danny Kelly . . . on the ____ day of June, A.D. 1947, with force and arms in the County, District and State aforesaid, and within the jurisdiction of this court, unlawfully, willfully, feloniously and of his malice aforethought, kill and murder J.T. Hilton, a human being . . .".
It will be noticed that the indictment omitted the word "did" before the words "kill and murder" and said word does not elsewhere appear in the indictment.
The appellant failed to demur to this indictment. Section 2449, Code of 1942, reads as follows:
"All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward; and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared."
There was a motion for a new trial, but the insufficiency of the indictment to charge the crime of murder is raised for the first time on the appeal to this Court.
In Cook v. State, 72 Miss. 517, 17 So. 228, there was an identical omission in an indictment for murder in that it omitted the word "did," as here, and the Court held the indictment was void and charged no offense; that Section 1354, Code of 1892, now Section 2449, Code of 1942, was not intended to deprive any citizen accused of a felony of his right to have the nature and cause of the accusation preferred against him clearly and fully stated, and any abridgement of the right to be thus informed in any substantial particular would be unconstitutional; that if the Court, by intendment, read into the indictment the word "did" so that the charge should read "did kill and murder" the deceased and thereby make the defective paper an indictment for murder, it might with like intendment, along the same line of offenses, read into the empty place in the indictment "did attempt" to kill and murder the deceased, or "did combine and conspire with John Doe and Richard Roe" to kill and murder the deceased. It was there also held that Section 1354, Code of 1892, Section 2449, Code of 1942, applies only to formal defects that may be amended without touching any matter of substance, does not apply to defects touching the substance, and that no averment of any indictment, which goes to the very essence of the offense, may be dispensed with by the state, or waived by the accused.
Since the decision in 1895, this Court has closely adhered to the principles announced in the Cook case. In Hall v. State, 91 Miss. 216, 44 So. 826; Id., Miss., 44 So. 810, the trial court, over defendant's objection, permitted the district attorney to insert the word "did" in an indictment for murder after the case had been called for trial, but on appeal this Court held the defect was one of substance and not amendable, and reversed this judgment and quashed the indictment. Also see Moore v. State, 91 Miss. 250, 44 So. 817, 124 Am. St. Rep. 715.
In McCearley v. State, 97 Miss. 556, 52 So. 796, the word "did" was omitted from an indictment for burglary, and the rule in the Cook case was followed and the indictment was quashed. See also Buchanan v. State, 97 Miss. 839, 53 So. 399, 400, where it was held that the omission of the word "malice" from a murder indictment is fatal.
In Willis v. State, 113 Miss. 838, 74 So. 677, an indictment for attempt to murder was held fatally defective for omitting the word "did" before the word "attempt". See also Herron v. State, 118 Miss. 420, 79 So. 289; Crosby v. State, 191 Miss. 173, 2 So.2d 813.
(Hn 1) It is true that the objection to the indictment before us was not raised in the lower court and is being raised for the first time here on appeal, but the indictment under consideration is wholly void for omitting the word "did". It cannot be waived and its validity can be challenged for the first time on appeal. Crosby v. State, 191 Miss. 173, 2 So.2d 813; Herron v. State, 118 Miss. 420, 79 So. 289; Cook v. State, 72 Miss. 517, 17 So. 228, 229.
Section 26 of the Constitution of 1890 secures to the accused such a specific description of the nature and cause of the accusation as will enable him to make preparation for his trial, and also such identication of the offense that he may be insured against a subsequent prosecution therefor. Section 27 of the Constitution places upon the grand jury, and the grand jury alone, the authority to present the charge of murder. An indictment for murder omitting the word "did" presents no accusation of any offense and is void. We cannot make it valid here, for, under our scheme of government, this Court cannot make an invalid into a valid indictment by intendment. The presentation of a valid indictment is the function of the grand jury, and the grand jury only. We repeat what was so ably said by Judge Woods in Cook v. State, supra, "Regretting the necessity of ever reversing any judgment after full trial, unless upon the merits, we yet must not forget that it is our sworn duty to maintain unbroken the constitutional safeguards of the lives and liberties of the people."
The judgment below will be reversed, the indictment quashed, the cause remanded, and the accused held to answer any indictment that may be found.
Reversed and remanded.
The controlling opinion holds that the omission of the word "did" from the indictment renders it void. The Cook case, cited in the opinion, so holds; therefore, we must follow that case or overrule it.
I fully appreciate the necessity of uniformity, certainty, and stability in the law. I am reluctant to overruling cases. However, when an announced rule is contrary to reason and logic, is clearly wrong, is manifestly mischievous in its effect, and its repudiation results in no injustice, nor deprives one of property or contractual rights acquired in reliance on the rule, it should not be followed and the case announcing it should be overruled. Brewer et al. v. Browning et al., 115 Miss. 358, 76 So. 267, 519 L.R.A. 1918F, 1185, Ann. Cas. 1918B, 1013, Suggestion of Error overruled; 14 Am. Jur., Sec. 124, pp. 341-2. In my opinion the Cook case and the case at bar come within the condemnation of the stated principle. No property or contractual rights are here involved. The conclusion reached in the Cook case that the indictment, because of the mere omission of the word `did", failed to notify defendant he was charged with murder, and misled him into believing he was charged with some other crime, is, in my opinion, contrary to common reason and logic. The indictment here charges that ". . . Danny Kelly . . . with force and arms . . . unlawfully, willfully, feloniously and of his malice aforethought, kill and murder J.T. Hilton, a human being . . .". It is obvious the omission of the word "did" was merely a clerical error. Kelly was bound to know he was being charged with the murder of Hilton.
And to demonstrate beyond all question that he did know it, and that he was in nowise prejudiced, the record discloses the following facts:
The warrant under which he was arrested recited that he was being arrested upon "a charge of murder by indictment in said court", being the same court in which the indictment in question was returned and was then on file.
On being arrested, he obtained his release by executing a bond which, by its express terms, obligated him to appear at the next term of that court and answer to the "charge of murder".
The entire trial proceeded upon the charge that he murdered Hilton. All the evidence, both on behalf of the State and the defense, was directed to that charge. Kelly killed Hilton by a blow on his head with a baseball bat, crushing his skull. He admitted he killed him. His defense was that Hilton was cursing him and his wife, and he killed him in anger, which facts, if they be facts, should reduce the crime from murder to manslaughter, according to his contention. All of the instructions, dealing with the nature and elements of the crime, were directed to the charge of the murder of Hilton. There is not the slightest intimation in the record that appellant had the remotest doubt he was being tried for the murder of Hilton. Here, then, is a practical situation. We should deal with it as such. The omission of the word "did" from the indictment certainly did not mislead appellant or deprive him of any right.
The rule announced in the Cook case is clearly mischievous in its effect. The question of the sufficiency of the indictment in the case at bar was never mentioned in the court below. It was raised for the first time in this Court. The record does not disclose how long it took to try the case nor the expense thereof. However, seventeen witnesses testified. Those who took part in the trial, including the trial judge, counsel for State and defense, the grand and petit jurors, the officers of the court, and the witnesses, underwent the trouble and inconvenience of trying the case, and the county incurred the cost and expense of the trial. Had the question been raised in the lower court, another indictment could have been promptly returned, if the defect could not have been remedied by amendment. Now, there must be a new trial and all the trouble and expense be again incurred.
In my opinion Cook v. State, and the cases following it, should be overruled, and we should now say that all defects of this character must be raised in the lower court under Section 2449, Code 1942, else they are waived by defendants. To avoid another such fiasco as is disclosed by this record we should correct a situation brought about, as I see it, by the Court becoming confused and lost in a technical situation, at a time when more importance was attached to technicalities than now, thereby permitting a trivial matter to outweigh ordinary reason and common sense.
McGehee, J., concurs in this dissent.