Kelly v. State , 204 Miss. 79 ( 1948 )

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.