Jones v. State , 141 Miss. 894 ( 1926 )

The appellant, Marshall Jones, appeals here from a jury verdict of guilty and the imposition of the death penalty by the court below on a charge of murder from the second district of Coahoma county.

On September 22, 1924, the appellant, Marshall Jones, shot and killed Sam Cox, the killing occurring in Oil Mill alley in the city of Clarksdale at or near the house occupied by Sadie Howard and her husband, Robert Howard, and also by Rebecca Mitchell, and her paramour, the deceased.

According to the state's witnesses, some months prior to the homicide Rebecca Mitchell and the defendant had lived together in another part of Clarksdale, but the defendant had abandoned the relation apparently, and for several months had worked in Helena, Ark. During the day and prior to the homicide the defendant visited the house and had a conversation with Rebecca Mitchell for a few moments and then left. Soon thereafter he returned, and on his return Sam Cox and the other state's witnesses were then in the house. According to the state's witnesses, no conversation occurred between the defendant and the deceased save the words, "Howdy, Sam" and "Howdy, Marshall." Thereupon the deceased, Sam Cox, proceeded to leave the room, and was followed by the defendant. The deceased having gone down from the porch to the ground, the defendant shot him in the back. Several eyewitnesses testified to about this state of facts. The parties were all negroes. The defendant and his witness, Mims, testified that he spoke in a conciliatory tone to the deceased, but that deceased was abusive and threatening, making the usual hip-pocket demonstration, when the defendant, as he claimed, fired in self-defense. We have not gone into details in the statement of facts, deeming it only necessary to show that there was an issue to be tried and submitted to the jury, and testimony sustaining the two theories.

After examination of one witness on behalf of the state, the state, by its district attorney, made a motion that the court remove itself to Oil Mill alley away from the court house and view the scene of the homicide, which motion was sustained by the court over the objection of the defendant. The motion set out with great particularity, embracing, in substance, all of section 2720, Code of 1906 (Hemingway's Code, section 2213), which reads as follows:

"When, in the opinion of the court, on the trial of any cause, civil or criminal, it is proper, in order to reach the ends of justice, for the court and jury to have a view or inspection of the property which is the subject of litigation, or the place at which . . . any material fact occurred, or of any material object or thing in any way connected with the evidence in the case, the court may, at its discretion, enter an order providing for such view or inspection as is herein below directed. After such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by him and by the representative of each side at the time and place of such view or inspection, in reference to any material fact brought out by such view or inspection. The court on such occasion shall remain in session from the time it leaves the courtroom till it returns thereto, and while so in session outside the courtroom it shall have full power to compel the attendance of witnesses, to preserve order, to prevent disturbance and to punish for contempt such as it has when sitting in the courtroom. In criminal trials all such views or inspections must be had before the whole court and in the presence of the accused, and the production of all evidence from all witnesses or objects, animate or inanimate, must be in his presence."

It appears that the court made the order before leaving the courthouse and then repaired with the officers, the jury, the defendant, the bailiffs, the sheriff, the clerk, and counsel engaged in the case, to Oil Mill alley and there five witnesses were examined, all the eyewitnesses, and one who was not. The following witnesses were examined: Anna Wallis, Cornelia Stepton, Vandella Johnson, Henry Harris, and Sadie Howard. We will quote some excerpts from the testimony to show the character of the examination held by the court in Oil Mill alley away from the courthouse of the county:

"Q. What did he do when he came down the steps? (Referring to the defendant.) A. He walked over there, and he stood and looked at him, still with the pistol in his hand.

"Q. Which hand is this, your right hand? A. My right hand.

"Q. What did you say he did with Marshall Jones at that time? A. Sam Cox throwed his head back and got his head around that way where he could see him; he asked him not to shoot him. He says, ``I ain't going to do nothing to you.' And when he said that I got up and begged Marshall not to shoot him any more. . . .

"Q. Well; after they went in there, how long was that before the shooting? A. It was not very long, because Sam put his coat on, and came to the door, with his back out of the door, and his face in the house, and what he was saying I don't know, but he had his back out of the door, fixing his coat up on his shoulder; that is what took me to look at him, and when he stepped out and got along here, he steps out and cracked down on him; ``Boom!' and he fell."

This excerpt is from the testimony of Anna Wallis.

Much of the testimony was devoted to the development of the facts of the homicide, rather than to pointing out the situation to the jury. Practically the same kind of testimony was elicited from Cornelia Stepton, Vandella Johnson, and Sadie Howard.

Henry Harris was not present at the moment of the shooting, but met the defendant coming around the house, and was examined mainly with reference to what occurred after the shooting when he met the defendant. The following questions and answers from his testimony are illustrative:

"By MR. SMITH: Q. How long after the shot had been fired before you met Marshall Jones? A. Well, it hadn't been no time, because as soon as the shot was made I came on out; I was in the house there when the shot was made. I quit eating, and met him at the corner of the house.

"Q. You were in the house eating? A. My house right back there.

"Q. Then immediately afterwards you met Marshall Jones? A. Yes, sir.

"Q. All right; now, then, state what Marshall Jones, if anything, did, at that time? A. Well; when I met him he was —

"By GOV. BREWER: Defendant objects. (Objection overruled. Defendant excepts.)

"By MR. SMITH: Q. State what he did? A. It seemed to me like he was trying to put his gun down in his scabbard, and looked up to see me, and he pointed it on me. He didn't say nothing to me. I didn't say nothing to him. He went on and got over the fence, and I came on around here. (Defendant objects. Objection overruled. Defendant excepts.)

"Q. Have you known Marshall Jones long? A. No, sir; I don't know him personally. I just been seeing him, just like I did this other boy.

"Q. Are you any kin to Marshall Jones, Sam Cox, or Rebecca Mitchell? A. No, sir. (Defendant objects to the testimony as not being proof about the premises at all, but substantive proof in the case has no connection with the location of the premises, or pointing out scenes, and not contemplated by the law and not in the courthouse of Coahoma county. Motion overruled. Defendant excepts.)

"By MR. SMITH: Q. State whether or not you were friendly with all of these parties? A. So far as I know, I haven't had no words with none of them. None of them have had no words with me.

"Q. What kind of a fence was this around there that Marshall Jones got over that you just testified about? A. Built like that around there, wire on top of it, pickets.

"Q. How many wires across the top of the pickets? A. I don't know, sir, but I know —

"Q. Take the witness.

"By GOV. BREWER: Defendant moves the court to exclude the testimony of this witness, because he was not present at the homicide, and because his testimony substantive in the case, not pointing out any of the objects or scenes, location of the homicide, and things that occurred afterwards, in different places, statements, action, and talk not connected with the pointing out of the scene of the homicide at all. (Objection overruled. Defendant excepts.)"

Defendant by his counsel objected to the taking of this testimony strenuously at every stage of the proceeding, so that the point is here sharply presented as to whether or not this statute authorizes the development of the main facts of the case in a trial for murder at the scene of the killing, and away from the courthouse, the place designated by law for holding courts. An examination of all of this testimony discloses the fact that the district attorney developed all of the essential facts leading up to, at the time of, and immediately after the homicide there in the negro quarters in Oil Mill alley.

There is no authority in law for holding court at any other place than the courthouse or the place designated as such by the properly constituted authorities, which it is unnecessary to repeat here. The examination of Henry Harris especially illustrates to what extent trial courts may go if this section means that the trial may be had at the scene of the homicide. The obvious purpose of this statute was that the court might go and with the jury see the objects and surroundings and have a view of the situation and have pointed out and explained to the court the objects there, and bring out the material facts relative to the scene. Henry Harris was permitted to describe a demonstration of a pistol made toward him and to describe the climbing of the fence by the defendant. In our opinion the judge may as well have taken his organized court over the trail followed by the defendant in making his escape to Helena, Ark., so long as he kept the organized court in the state of Mississippi, if the testimony of Henry Harris was proper in this case.

We think the action of the court in this case in developing the facts of the killing and the incidents preceding and immediately succeeding the homicide was in fact holding the trial of this defendant in Oil Mill alley, and most of the testimony elicited was in an effort to prove the defendant's guilt rather than have witnesses point out the scene of the homicide and elicit information necessary to understand the location being examined; and there being timely objection to the proceeding, we are of opinion that the defendant's rights were prejudiced, and especially as the trial changed from an examination of the scene to an inquiry into the facts of the killing not necessarily connected with the scene being examined.

True it is that all the competent facts elicited in the trial of any case such as this may be said in a sense to be material facts connected with the view or inspection, but in our opinion the examination away from the courthouse under this statute must be devoted to the explanation of the scene, location of distances, and such testimony as tends to make a complete map of the situation.

We cannot lend our assent to the idea that this statute permits the trial of a cause at a place other than that designated by law, and this case is an illustration of the danger of holding that the entire trial may be had at some point not authorized by law under the guise of inspection of the scene. The very warp and woof of our law cluster about the fact that there shall be orderly procedure, at a specified time, at a fixed place, where the presiding judge, assisted by his officers, may be in entire and complete control of the entire situation, where the public may hear and see everything that goes on in connection with the trial of a cause. This beneficient provision of the law grew out of the abhorrence engendered by private inquisitions and star chamber proceedings, and a departure from the rule tends towards disorganization of the court, and tends to dissipate the respect for the administration of justice wherever there is a letting down of the bars such as here took place.

If we hold that permitting a major portion of the trial so far as eliciting the main facts of the homicide was concerned, in Oil Mill alley is proper, then there would be no limit on the power of the court, once he had gone to the scene, to examine the witnesses indefinitely and prolong the trial at the scene of the murder to its conclusion. We cannot subscribe to this view. As a matter of fact, it is the experience of any trial judge that a record secured by viewing the scene is very imperfect. The opportunities for unfairness on either side are broadened, and we cannot say that it would not hurt a defendant to have the trial occur at some place other than the place designated by law. We prefer to say that only a view of the scene may be had and witnesses examined for the purpose of a description of such scene and the material facts there seen by all, both court and jury, and we limit this statute, section 2720, Code of 1906 (Hemingway's Code, section 2213), here under review to the plain object which it sought to attain, and we shall not extend it to the point of permitting the development of substantive facts other than to point out the scene and such facts as are necessary to a proper description of the scene.

All of the material facts of the homicide were contradicted sharply by the defendant and his witness, and especially the testimony of Henry Harris was contradicted.

In the case of Sexton v. Coahoma County, 86 Miss. 380, 38 So. 636, this court held that a meeting of the board of supervisors, held in the chancery clerk's office in a separate building from the courthouse, although in the courthouse yard, was illegal and void.

In the case of Harris v. State, 72 Miss. 960, at page 965, 18 So. 387, 388 (33 L.R.A. 85), it is held:

"A courthouse is a house where courts are held, and ``at the courthouse' has, in the legislation and decisions of this state, a crystallized and settled meaning in this connection, and means at the ``building occupied and appropriated according to law for the holding of the courts.'

"This court has no legislative power. It is as much its solemn duty to enforce the law as written, when that law is clearly expressed, as that of the humblest citizen of this commonwealth. It would be a manifest perversion of its constitutional functions to read into a statute clearly written, a meaning at war with the plain and manifest significance of the terms used in their context, due regard being had to the subject-matter being treated. The law requiring boards of supervisors to meet at the courthouse is, for most obvious reasons, pre-eminently wise. That law this court must administer as written, and not bend to suit exigencies of varying cases, or to save from results, however hard, brought about by the inexcusable negligence which fails merely to open the code and read what, when read, is too clear to need any construction."

Section 307, Code of 1906 (Hemingway's Code, section 3580), provides that the boards of supervisors shall provide for and cause to be erected in their respective counties in each judicial district thereof a good and convenient courthouse. Section 322, Code of 1906 (Hemingway's Code, section 3695), among other things provides for the acquisition of land on which to erect a courthouse and to designate the courthouse.

In the case of Carter v. State, 100 Miss. 342, 56 So. 454, Ann. Cas. 1914A, 369, the organized court heard the testimony of Jim Strickland over the objection of defendant and it was urged there, as it is urged here, that this departure did not harm the defendant. WHITFIELD, C., speaking for the court, said:

"Bishop, in his new Criminal Procedure (volume 1, section 1195) announces that this cannot be done, citing Adams v. State, 19 Tex. App. 1[19 Tex.Crim. 1]. That case we have carefully examined. It is identical in its facts with the case at bar, and on the point involved the court said: ``We know of no authority which would compel the defendant to go with the court and jury from the courthouse to where the absent witness was at the time, that her testimony might be taken. Under the law the trial must be had at the courthouse at the county site of the county. It was there, and there only, that the case must be heard and determined. If the defendant could be required to go one-half a mile with the court and jury in order to have the benefit of the testimony of an absent witness, he could be required to go one, two, or five miles. We cannot sanction such a practice. All the proceedings in the trial should be conducted at the courthouse, the place designated by law for the trial of causes. If the defendant had consented to the proposition to go with the court and jury to the place where the witness was, and there take her testimony, and if her testimony had in this manner been taken, we do not think the defendant could have objected to the irregularity. But that is not the question before us. In this case the defendant's application for a continuance was refused; one of the grounds of the refusal being that he declined to accept the proposition of the court to go with the jury to the place where the witness was confined by sickness, and there take her testimony. Such a proposition was, we think, no answer to his application for a continuance, and should not be considered in determining his right to a continuance.'"

We are absolutely certain that much of the testimony taken in Oil Mill alley in this case was such as is not permitted by section 2720, Code of 1906 (Hemingway's Code, section 2213), under which a view of the place where the homicide occurred was had and that all of the testimony was taken over the strenuous protest and objection of the defendant, so that, whenever the court permitted the testimony to go beyond the plain stipulation of the statute, that part of the trial was as harmful to the defendant in the instant case as was the evidence complained of in the Carter case, supra, because not authorized by the statute nor by the common law, and this statute, authorizing the view of the scene, is in derogation of the common law, and the rule strictissimi juris must be applied.

In Hanley v. Medford, 56 Or. 171, 108 P. 188, the court said: "To constitute a lawful court, therefore, the persons who assume to hold such court and dispense justice must be officially assembled under authority of law, and the court must be held at the appropriate time and place appointed by law therefor. If the person assuming to act as judge was not then invested with judicial authority (that is, with the power of the law to declare and record its mandates), then his acts in attempting so to do are of no consequence whatever, and are void. And if he were fully invested with judicial authority, so as to make his pronouncement of the law effective, still the time and place of holding the court are equally essential; for, when the law prescribes the time and place for the holding of court, then time and place are as essential limitations of jurisdiction, as are subject-matter and parties" — citing Ex parte Branch Co.,63 Ala. 383.

It is not within the spirit and genius of our law that the court should migrate from place to place, and whenever the court goes beyond and not within the stipulations of this statute permitting exceptions to the rule, then all that was done and said must be presumed to be harmful to the defendant, and for this error we think this case should be reversed.

The defendant requested the following instruction, which was refused by the court:

"The court instructs the jury that if there is a probability of the innocence of the defendant, then there is a reasonable doubt as to his guilt, and the jury must return a verdict of not guilty."

It is true that there are many instructions in this record in which the reasonable doubt theory was submitted to the jury. However, we call attention to the fact that Chief Justice GEORGE reversed the case of Nelms v. State, 58 Miss. 362, for the refusal of this instruction, and, while we do not say that this is reversible error in the light of the many instructions secured by the defendant, yet, upon another trial, we think this instruction should be given by the court.

Many other assignments of error are in this record, but, believing it improbable that they will occur again in another trial, we shall not undertake here to review each of them in detail.

For the error in permitting the state to introduce the material substantive testimony of the facts of the killing not absolutely necessary to point out the scene, and while away from the courthouse, over the objection and protest of the defendant, this case must be reversed.

Reversed and remanded.