Dees v. State , 78 Miss. 250 ( 1900 )

Terral, J.,

delivered the opinion of the court.

Wesley Dees was convicted at a'special term of the circuit court-of Neshoba county of the murder of Elijah Fulton, and was sentenced to the state penitentiary for life. A regular term of the circuit court of Neshoba county is limited by law to six days. The circuit judge ordered a special term of said court to be convened on the fourth Monday in November, 1899,. without specifying any period for its conclusion. The court in fact continued into the second week after it convened. Upon a day of the first week of said court the defendant was indicted, and upon a day of the second week of said term of court the defendant was put upon his trial, and was convicted and sentenced as aforesaid; and, because the trial of the defendant commenced in the second week, it is insisted that his trial and conviction are coram non judice and void. It is insisted that the circuit judge could not, by any authority vested in him, continue a special term of court longer than six. days, the limit of a regular term of court, or, if he could do so, it must be done by him in the order calling the special term, and that otherwise the limitation of six days attaches.

Our code, § 912, provides that a circuit judge may call a special term of court when the business of the court may require, and § 630 provides that the court at a special term shall have full jurisdiction to hear and determine all civil and criminal business in the same manner as at a regular term, and we are of the opinion that the special term of the court in this case was properly continued during the second week. This case of Dees, at least, was there undisposed of, and required a trial, and for this matter, as well as for other matters, this special term was called, to continue, of necessity, so long as the business of the court should require. A regular term of court for every county is limited to a fixed number of days, but the number of days of a special term is not fixed by the statute, because it is to close up unfinished business, and the judge does not fix it because the power to adjourn it is in his own hands, and, if predetermined, he might not meet the requirements of the business of the court. A special term of court is not limited by law to any fixed number of days, and, when called, the judge may keep it open so long as it may be necessary for the public service. Hutchinson’s code, ch. 53, art. 8, p. 740, provides that, when a special term of court shall have been ordered, it shall continue until all the business pending shall be finished. The express provision of this early code is, we think, a necessary and reasonable implication from our present statutes on the subject, and this construction is strongly fortified by the principles of the common law.

In People v. Sullivan, 115 N Y., 185, s.c. 21 N. E., 1039, Sullivan was put upon his trial on the twelfth of March, 1888, and at the end of the day the court adjourned until 10 o’clock, March 13th. On account of a snow blockade, the court did not meet on the thirteenth. On the fourteenth of March the trial was resumed, and upon his conviction, he interposed an objection that the proceedings of the court were coram non judice and void. Peckham, J., said: ‘1 Nothing but the most rigorous rule of law should, under the circumstances, compel a court to admit .its loss of jurisdiction, and the consequent failure of all proceedings taken before it. If, from the positive commands of any statute, or the decision of some court which is binding upon us, we are compelled to so decide, nothing more need be said. We do not think there is such a statute or decision. The term of the court having been regularly opened, its continued existence thereafter would by the common law be regarded as but one day. All the business done at a term of court was by that law referred to its commencement, unless the law directed certain acts to be done on certain days. There is an inherent power in a court to adjourn its proceedings from day to day so long as it is necessary to finish the business legitimately brought before it, unless by the terms of some statute its existence is sooner brought to a close. ’ ’

In Townshend v. Chew, 31 Md., 247, it is said that a “term of the circuit court continued until the call of the next succeeding term, unless it should affirmatively appear that before that time it had, by order of the judge, been adjourned sine die; ” and this decision is approved in Freem. Judgm., sec. 90. In Railway Co. v. Hand, 7 Kan., 238, the court was adjourned on Saturday until the next Monday, but it did not in fact meet until the ensuing Wednesday, and it was argued that it had lost jurisdiction. It was, however, held that, the court having once opened, it so continued until the term expires, or an adjournment sine die is made. In State v. McBain, 102 Wis., 431, s.c. 78 N. W., 602, it is said: “According to modern policy and methods, a term of court, having been duly commenced, continues until the court itself, by an affirmative judicial act, terminates it, or until the next term. ’ ’ In Re Dossett, 2 Okl., 369, s.e. 37 Pac., 1066, it is declared: “ We are unable to say that after a session of court is once regularly commenced, on the day fixed by law, it can expire in any manner, except by adjournment sine die or by operation of law. This rule is too well settled to admit of controversy. ’ ’ Hume v. Bowie, 148 U. S., 245, s.c. 13 Sup. Ct., 582, 37 L. Ed., 438, may be cited as maintaining the principle here announced; and we conclude that the learned circuit judge rightly continued the court until the charge made against the defendant was tried and ended.

2. We think the corpus delicti was fully proven, and that the verdict is amply supported by the evidence.

3. We find no error in the instructions, as the instructions given cover the points made in those that were refused, wherefore the judgment of the circuit court is

Affirmed.