Opinion
No. 36199.
November 11, 1946.
1. INDICTMENT AND INFORMATION.
At common law, a formal accusation is an essential condition precedent to a valid prosecution for a criminal offense, either by information supported by affidavit or by indictment.
2. INDICTMENT AND INFORMATION.
The objects of an information or of an indictment are to furnish accused with a description of charge against him, to enable him to prepare his defense and avail himself of the conviction or acquittal against further prosecution for the same offense, and to inform court of facts alleged so that it may be able to say whether facts are sufficient in law to support a conviction if one should be had (Const. 1890, sec. 26).
3. CRIMINAL LAW.
Affidavits that defendant exhibited a deadly weapon in a rude, angry, and threatening manner, carrying concealed a deadly weapon, and assault and battery with his fists, charged three separate offenses requiring different evidence and could not be consolidated (Code 1942, secs. 2079, 2086, 2562; Const. 1890, sec. 26).
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
T. Price Dale, of Hattiesburg, for appellant.
In fairness to one accused of crime he should not be put to trial for more than one offense.
Wash v. State, 14 Smedes M. (22 Miss.) 120; Hill v. State 72 Miss. 527, 17 So. 375; McEwen v. State, 132 Miss. 338, 96 So. 690.
Two or more offenses should not be consolidated and tried together unless the ends of justice require it in order to avoid unnecessary delay and expense and where defendant is not thereby confounded in his defense or otherwise prejudiced.
16 C.J. 782, 783, Sec. 2004.
Under the requirements of said Section 1636 of the Code of 1942 that a shorthand reporter shall take notes of the evidence unless waived by the defendant, it was fatal error to put appellant here to trial, and to try him, on all three of the charges at once and that without a statutory court reporter. The evidence was recorded by an electric recording machine. It is true that the court reporter certified that the transcript of the evidence in the record before the court is a correct transcript of the evidence taken in the case, but how did she know that it was. She did not take notes of the evidence. She merely sat through the case and saw the machine operating during the trial, and she merely copied as the evidence in the case what the machine read back to her, and her said certificate means that she thinks the machine read back to her what was said and done in the taking of the testimony. And it may be that the machine did accurately take the evidence and accurately read it back to her, but there is no proof here that it did so or that it was ever tested and proven by having had stenographic notes taken against it, or otherwise.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
No statute provides for consolidation of separate misdemeanors in the State of Mississippi and there is nothing to define what the offense would be when they were consolidated.
See Ramswick v. Messerer, 200 Minn. 299, 274 N.W. 179; O'Malley v. Wilson, 182 Ga. 97, 185 S.E. 109.
The rule is that the crime should be charged so that the defendant may be advised of the nature and cause of the accusation and in order that he may be prepared to procure and offer evidence on the issue made on a plea of not guilty.
It has been my view that it has been the policy of the State to try defendants separately for separate offenses; and, in felony cases, if parties are jointly indicted, they are entitled to a severance, giving each a separate trial. If parties are jointly indicted for a misdemeanor, it is discretionary with the court whether they will be tried jointly or separately. The discretion in such case is a legal discretion; and if the facts developed in the trial show prejudice to either defendant on a joint trial, the conviction would be reversed, at least as to the one prejudicially affected by the joint trial.
It appears to me that trying the defendant on all of the charges and under the peculiar circumstances of this case was prejudicial to his rights and tended to put upon him the burden which would be prejudicial, although the jury did not convict him of the other offenses.
Wellborn v. State, 140 Miss. 640, 105 So. 769; Planters' Oil Mill v. Yazoo M.V.R. Co., 153 Miss. 712, 121 So. 138; Interstate Co. v. Garnett, 154 Miss. 325, 122 So. 373, 756, 63 A.L.R. 1402; Interstate Life Accident Co. v. Pannell, 169 Miss. 50, 152 So. 635; Hemingway v. Scales, 42 Miss. 1, 97 Am. Dec. 425, 2 Am. Rep. 586; Martin v. State, 190 Miss. 32, 199 So. 98; Lewis v. State, 198 Miss. 767, 23 So.2d 401; Commonwealth of Massachusetts v. Gallo, 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380; Code of 1942, Secs. 2514, 2515; 4 Mississippi Digest, "Common Law," key nos. 9-12; Federal Digest, "Criminal Law," Sec. 619; Decennial Digest System, "Criminal Law," Secs. 619-622; 14th Century Digest, "Criminal Law," Sec. 1376; 27th Century Digest, "Indictments and Informations," Sec. 402; 23 C.J.S. 209, Sec. 931.
On the point that the court reporter did not take down the evidence in shorthand but that it was taken down in the manner shown by the record, I desire to say that counsel could not complain because no bill of exceptions was prepared and tendered during the trial to show what did transpire and what evidence was introduced other than that shown in the record; and this it was incumbent upon the defendant to do, under Sections 1639, 1640, 1643, and 1644 of the Code of 1942. I submit that there is no error shown in the record, and that there is nothing to show that the machine, whatever it was, did not take down correctly what was said. The official court reporter filed her certificate in due form, showing that the testimony was taken by her on the trial of the above case; and the record shows no suggestion for corrections and no bill of exceptions signed by the judge, by which any error could be contended for.
Woods, by three separate affidavits, was charged with (1) exhibiting a deadly weapon, to-wit a pistol, in a rude, angry and threatening manner in violation of Section 2086, (2) with carrying concealed a deadly weapon, to-wit a pistol, in violation of Section 2079, and (3) with assault and battery with fists in violation of Section 2562, the three cited sections being in the Mississippi Code of 1942. At the beginning of the trial in the County Court the county prosecuting attorney moved the Court to grant an order consolidating these three charges into one and for one trial of the consolidated case because, as stated by him, the three crimes "grew out of one and the same transaction." Woods objected to this procedure but the trial judge granted ". . . the motion of the State to consolidate the cases inasmuch as they are misdemeanors." Woods on this appeal contends that this was error and that we should reverse and remand the case therefor.
Mississippi has no statute on the subject of consolidating distinct criminal charges against the same person into one offense and a trial thereof as one case. Section 2514, Code 1942, grants to persons jointly indicted for felony the right to be tried separately on due application for a severance, and Section 2515 provides that persons jointly indicted for misdemeanors may be tried jointly or separately in the discretion of the Court. But the question involved here is not dealt with in either statute. The question under consideration is discussed in 8 R.C.L., page 166, par. 160; Lucas v. State, 144 Ala. 63, 39 So. 821, 3 L.R.A. (N.S.) 412, and note thereto; Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380, and in 23 C.J.S., Criminal Law, Sec. 931, p. 209. These authorities reveal that in some jurisdictions such consolidation and trial are permitted in the discretion of the court, but it will also be noted that many of the cases permitting consolidation were decided under statutes, federal and state, so permitting, or the defendants consented, or did not object, to such procedure, and that even under these conditions the action of the court is to be guided by a sound discretion, making sure that consolidation will save delay and expense and not prejudice the defendant. These precautionary requirements are stated in 23 C.J.S., Criminal Law, Sec. 931, p. 210, in this language: "Under such statutes consolidation is authorized only when the offenses charged therein might have been joined in one indictment under separate counts and should be allowed only where the court is satisfied that the ends of justice require it in order to avoid unnecessary delay and expense, and where accused is not thereby confounded in his defense or otherwise prejudiced, and the court is under a duty to protect with care the substantial rights of accused when subjected to a consolidated prosecution."
The exact question seems not to have arisen in this court since this State was admitted into the Union, December 10, 1817. That fact itself is significant. However, this court has frequently held (with some exceptions, see Jimerson v. State, 93 Miss. 685, 46 So. 948) the case at bar not being one of the exceptions, that separate and distinct offenses can not be charged in one indictment or information although all offenses be misdemeanors. McGraw v. State, 157 Miss. 675, 128 So. 875, and cases therein cited. These holdings prevent this State from coming within the above quoted requirement that "consolidation is authorized only when the offenses charged therein might have been joined in one indictment." See 27 Am. Jur. page 683, par. 124, for a general discussion of this question.
At common law and from the earliest colonial days in this country it has been the settled rule that a formal accusation is an essential condition precedent to a valid prosecution for a criminal offense. This is done by information supported by affidavit or by indictment. In either case the objects are first to furnish the accused such a description of the charge against him as will enable him to prepare his defense and avail himself of the conviction or acquittal against further prosecution for the same offense, and, second, to inform the court of the facts alleged, so that it may be able to say whether the facts are sufficient in law to support a conviction if one should be had. Section 26, Mississippi Constitution of 1890, gives an accused the right "to demand the nature and cause of the accusation." Applying these requirements and principles to the facts of this case, what are the results?
In the first place, the elements of the three crimes are different. As to exhibiting a deadly weapon in a rude and angry manner, the statute requires that this be done in the presence of three or more persons, not in necessary self defense, "or shall in any manner unlawfully use the same in any fight or quarrel." Section 2079 makes it a crime to carry concealed, in whole or in part, a pistol, or any of several other weapons specified in the statute, or "other deadly weapon of like kind or description." The offense of assault and battery with the fists comes within Section 2562, Code of 1942, covering offenses indictable at common law for which no penalty is elsewhere prescribed. It is obvious at once that the elements constituting these three crimes are quite different one from the other. The accused was called upon to defend himself against all of them in one and the same trial.
The penalty for exhibiting a deadly weapon in a rude and threatening manner is a fine of not over $500 or confinement in jail not exceeding three months, or both; for carrying concealed a deadly weapon, the penalty is a fine of not less than $25 nor more than $100, or imprisonment in jail not exceeding three months, or both; and for assault and battery with fists, a fine of not more than $500 and imprisonment in jail for not more than six months, or either. When the three cases are consolidated into one and there is a conviction, it is difficult to understand what guide the court had in fixing the punishment.
Again, much of the evidence necessary to convict the accused in this case of assault and battery with fists would not have been competent on a trial for carrying concealed a deadly weapon. The assault and battery, according to the contention of the State, took place after the crime of carrying concealed a deadly weapon was over. In fact, exhibiting the weapon in a rude and threatening manner necessarily terminated the crime of carrying the weapon concealed. The accused had to be prepared to meet evidence of three distinct crimes, where much of the evidence as to one was not competent as to the others. Certainly the accused was confounded in his defense and evidence was introduced before the jury which would not have been competent upon separate trials.
It seems to be asserted in the briefs that appellant was convicted of assault and battery and acquitted of the other two crimes. The record does not show what the verdict was as to the other two crimes. Apparently if there was an acquittal of these two charges it was by inference and not by express verdict. The record contains only this verdict, "We, the jury, find the defendant, guilty of assault and battery." Just how appellant could plead this verdict in defense to another charge of carrying concealed a deadly weapon and exhibiting such weapon in a rude and threatening manner, it is difficult to see, since there was no verdict on this trial expressly convicting or acquitting him of these charges.
While the foregoing quoted verdict appears in the record, and is the only one which does so appear, the order of the Court imposing the sentence recites that the verdict was, "We, the jury, find the defendant, guilty as charged." If this was the verdict, it is impossible to determine the crime fastened upon the accused and how he could plead such a verdict in further prosecutions for the same crime.
All of this means that the court had no power or authority to consolidate these charges and try the consolidated case as one crime. Such procedure is foreign to the jurisprudence of this State under the facts of this case. Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision.