Summary
In Carter v. State, 139 So. 618, 620 (Miss. 1932), the Supreme Court of Mississippi explained that bailbondsmen "may arrest their principal anywhere or authorize another to do so."
Summary of this case from Herd v. StateOpinion
No. 29666.
February 15, 1932.
1. CRIMINAL LAW.
Where testimony in murder case was conflicting, it was important that instructions should be reasonably free from harmful error.
2. CRIMINAL LAW. Rule that anterior events helpful to understanding of main transaction are admissible should be applied liberally in interest of justice, with some discretion in trial judge.
Some discretion must be allowed to trial judge, whose duty it is to see that trials are not taken into distinctly collateral issues or into matters which are substantially immaterial or irrelevant.
3. HOMICIDE.
In homicide prosecution against constable, testimony concerning deceased's hostile attitude toward officers previously serving process on deceased held admissible.
4. BAIL.
Statutes authorizing sureties to arrest principal anywhere, or to authorize another to do so, are declaratory of common law (Code 1930, sections 1250, 1251).
5. HOMICIDE. In homicide prosecution against constable, refusal to instruct that it was constable's duty to accept surety's surrender of deceased principal held reversible error ( Code 1930, sections 1250, 1251).
Facts disclosed that surety, on being informed that justice of peace contemplated forfeiture of bail bond because of principal's failure to appear, requested constable to accompany him to another district to receive surrender of principal, and that on meeting principal in such other district he formally announced that surety was then surrendering principal and requested constable to accept surrender and arrest principal. Thereupon, in resulting difficulty, constable killed principal. Refusal of requested instruction was reversible error, because state took erroneous position that constable was without any authority to arrest deceased in district other than his own, even at request and by surety's authority, and trial court upheld that theory.
6. HOMICIDE.
Constable who, at surety's request, accompanied surety to another district to accept surrender of principal, had duty and right of arresting principal (Code 1930, sections 1250, 1251).
7. HOMICIDE, In homicide prosecution against constable, refusing instruction that constable was without authority to accept money from deceased in settlement of criminal charge held error.
When surety surrendered principal to constable, constable informed principal that he would have to go with constable before justice of peace and make some new arrangement, whereupon principal defied officer to take him, and then went to railroad station and arranged to borrow money which, as he supposed, would cover fine and costs of pending criminal charge, and which he proposed to tender constable in discharge of his arrest. However, the case had not been tried, and there had been no adjudication of fine, nor any final fixation of costs.
8. CRIMINAL LAW.
Compromise verdicts are invalid.
9. CRIMINAL LAW.
Defendant has right to stand or fall on defense as made and to have jury properly instructed against compromise verdict.
10. CRIMINAL LAW.
Requested instructions against compromise verdict held properly refused because omitting element that conviction which juror entertains must be conviction after consultation and deliberation with other jurors.
APPEAL from circuit court of Clay county. HON. J.I. STURDIVANT, Judge.
McIntyre McIntyre, and B.H. Loving, all of West Point, for appellant.
The testimony to which the objections were sustained detailed the efforts of the magistrate to get the criminal charge against the deceased settled or to get the warrant of arrest, issued by him served by various officers of the county, prior to its having been sent to appellant, as a constable of the county, the second time. They are continuous series of events, closely connected in point of time, which lead up to the main transaction.
Continuous acts or a series of events, especially when closely connected in point of time, which lead up to and are necessary or clearly helpful to a correct understanding of the main transaction — which tend to explain and elucidate the conduct and purposes of the parties — are as much of the res gestae as the direct act itself, and are admissible as a part of the transaction.
16 C.J., 572, 573; 30 C.J. 194, 195; 6 Ency. Ev. 610-612; McCormick v. State, 132 So. 757.
As to the law on the question of whether the defendant, Cartee, was acting within his rights at the time in question, we refer the court to Section 632 of the Code of 1930.
Cartee was executing the criminal laws of the state in seeking to arrest a defendant in a criminal case at the request of his bail, or to accept his surrender therefrom, and such action was within his county. In fact, it is not even necessary that he should have been an officer to have had a right to arrest the deceased at the request of his bail, under and by virtue of section 1250 of the Code of 1930.
Section 1251 of the Code of 1930.
These statutes on the subject of the arrest of the defendant by or at the request of his bail are merely declaratory of the common law.
If there was ever a case in the history of the jurisprudence of this state, wherein instructions embodying the doctrine set out in instructions No. 20 and 21, to the effect that no juror should compromise his honest convictions in order to bring in a verdict, or should compromise on a verdict of manslaughter, when he had a reasonable doubt as to the guilt of the defendant are applicable, this case is such a one.
Under our law, instructions embodying this one juror and noncompromise doctrine, must always be given in a criminal case and especially in a murder case where there is a serious conflict as to the guilt of the defendant and where it does not follow inevitably from all of the evidence that the jury can reach no other verdict than that of guilty, and we plant ourselves upon this principle and this law in this case.
Speaks v. State, 136 So. 921; Sanford v. State, 125 So. 726; Thomas v. State, 60 So. 781; Bell v. State, 42 So. 542; Ammons v. State, 42 So. 165; Lawson v. State, 40 So. 325.
In the giving of the instruction on the presumption of innocence to the state, the state attempted to limit or qualify the well recognized doctrine of the presumption of innocence and that as an attempted limitation, or qualification thereof, the instruction is bad and constitutes reversible error and if erroneous, it was certainly prejudicial to appellant, and reversible error.
Eugene B. Ethridge, Assistant Attorney-General, for the State.
Court's refusal to allow Vail to testify to remote facts not directly connected with the major transaction was not error.
It might be said that in the light of a showing that the excluded testimony had to do with the service of a warrant for the same charge which was later the cause of the homicide the testimony even though going back several weeks should have been admitted. The obvious answer to such an argument is that the failure of the other officers to execute the process, their points of view and ideas would throw no light upon the main transaction. In fact, testimony to this effect is so far removed and so distantly connected as to have no bearing upon the homicide and, in effect, has no relation in kind to the crime with which appellant is charged.
The facts in this case and the McCormick case are so easily distinguished as to quickly eliminate the application of the rule there announced.
Whittington v. State, 160 Miss. 705.
The court's refusal of constable instructions on behalf of appellant was a proper ruling.
The appellant requested several instructions which the court declined to grant, stating that the appellant as a constable of district No. 4 of Clay county had authority to go into district No. 5 of said county and arrest McGee. The appellant had no official right to go into a district other than the one for which he had been elected. His authority as an officer was confined to district No. 4 of Clay county, and the court, therefore, was correct in refusing to grant these instructions.
State v. Messer, 142 Miss. 882, 884.
A constable may not go beyond the confines of his district and perform official acts.
Riley v. James, 73 Miss. 1; Boutwell v. Grayson, 118 Miss. 80; Section 171 of the Constitution of the State of Mississippi.
Also it is to be noted that the deceased was not an escaping-miscreant. Constable Cartee was clearly going beyond the territorial limits of his office and in so doing was attempting to confer upon himself official authority which the laws of this state do not sanction. In attempting to make an unlawful arrest he was acting beyond the scope of his authority, and the deceased was entirely within his rights had he elected to resist the arrest with such force as was necessary.
The refusal of noncompromise instruction rested in sound discretion of trial judge.
Where the instructions to the jury furnish an adequate and sufficient guide as to the law, the court's refusal to allow further instructions is within its discretion and does not amount to prejudicial error.
Reeves v. State, 159 Miss. 498; Wiley v. State, 129 Miss. 196; Reynolds v. State, 136 Miss. 329; Cain v. State, 135 Miss. 892; Frazier v. State, 141 Miss. 18; Borders v. State, 138 Miss. 788.
Appellant was indicted for the murder of O.G. McGee, and on the trial was convicted of manslaughter. The testimony of the several witnesses is in conflict, some of them supporting the charge of murder; some of them made out a case of self-defense, and it might be considered that upon certain reconciliations of the testimony the verdict of manslaughter had some support in the proof. In this state of case, it was important that the instructions should be reasonably free from harmful error. We are of opinion that there were two material errors in the refusal of instructions, at least one of which was a reversible error. Inasmuch as the case must be remanded for a new trial, we make no comment on the evidence; and will state none of the facts except so much thereof as is necessary to disclose what, in our opinion, are the material errors in the record.
An affidavit had been made before a justice of the peace in district No. 5 of the county against McGee, the deceased, charging him with a misdemeanor. McGee was a resident of said district, and it was charged that the offense was committed in that district. The justice of the peace experienced considerable difficulty in procuring service on the warrant issued by him for the arrest of McGee. Astonishing as it may seem, the record is without dispute that the officers whose duty it was to serve said warrant in said district either declined to execute the writ or else delayed and failed so to do. After a delay of some two months, it was ascertained by the justice of the peace that McGee was at this later time working at a sawmill in district No. 4 of the county, and another warrant was issued and placed in the hands of appellant, Cartee, who was the constable of said district 4. Appellant soon thereafter, in said district 4, severed the warrant upon McGee, as a result of which McGee executed an appearance bond in the sum of one hundred dollars with J.E. Elmore and R.L. Young as sureties, conditioned for the appearance of said principal at the next term of the justice court and from day to day and from term to term until discharged by law.
But McGee did not appear at the next term as his bond required him to do. The justice of the peace, however, did not take a forfeiture on the bond, and instead he notified appellant, the constable, who had taken the bond, that a forfeiture would be taken at the succeeding term unless the principal should then appear; and the said constable was requested to notify the sureties on the bond to that effect. According to the undisputed testimony, Young was the only surety on said bond who was solvent. Appellant at once notified the said surety, Young, of the foregoing; and Young thereupon stated to the appellant that, in view of the failure of his principal to act within the terms of the bond, he (Young) desired to surrender said principal at once, and thus be discharged from said bond. It was ascertained that on this day the principal was not at the sawmill in district 4, but was at his home in district 5. The surety, Young, requested appellant, the said constable of district 4, to accompany him (Young) at once into district 5 thereto to receive the surrender of said principal. Appellant agreed to do so, and forthwith these two departed, in company with each other, to the residence of the principal in district 5; and arriving there, or in the near vicinity thereof, they met the principal; and the said surety then and there, in the presence and hearing of the principal and in the presence of the said constable, informed the said principal and said constable, by a definite and sufficiently formal announcement, that he was then and there surrendering said principal, and did so surrender him, and then and there requested the said constable to accept said surrender and to arrest said principal. The said constable then attempted to execute the directions of the surety, and in the course of the events immediately transpiring the principal was killed by the constable.
It is contended by appellant that the court erroneously excluded a considerable part of the testimony of the justice of the peace, who was questioned in detail respecting the difficulties had in procuring service of process. This testimony tended to show that the deceased had assumed a hostile attitude toward officers of the law. Appellant contends that this testimony was of a connected series of events which served to show or explain the attitude and conduct of the deceased at the time of the homicide and to elucidate the part that the deceased enacted therein, and appellant relies on McCormick v. State, 159 Miss. 610, 132 So. 757. The same question has been recently considered by this court in Lee v. State, 160 Miss. 618, 134 So. 185, and in Daniels v. State, 136 So. 725. The rule in respect to anterior events is succinctly stated in the McCormick case, and as accurately as we can phrase it. As disclosed in the Lee case, the stated rule is to be applied liberally in the interest of justice in each case, and is not to be held to strictness. Some discretion, however, must be allowed to the trial judge, whose duty it is to see that trials are not taken into distinctly collateral issues or into matters which are substantially immaterial or irrelevant. The main trouble with the excluded evidence was that some of it was hearsay, much of it was inconclusive, that is to say, proved nothing, and but little of it was of material value. However, there were some portions of that which was excluded in this evidence which should have been admitted, and on a new trial, the discussions by the court in the McCormick and Lee cases, with the authorities therein cited, will furnish dependable guides.
The state took the position in this prosecution that the constable of district No. 4, the appellant here, was without any authority of law in attempting to arrest the deceased in district No. 5, even at the request and by authority of the surety on the appearance bond; and the trial court upheld that theory. The court thereupon refused the following instruction requested by appellant: "The court charges the jury for the defendant that Bob Young, the surety upon the bond of McGee, had a legal right to surrender McGee to Cartee; and when Young, speaking to McGee, told him that he, Young, was off of McGee's bond, in the presence of Cartee, and then and there Young, in the presence of McGee, speaking to Cartee, told Cartee to take charge of McGee, it was then and there the duty of Cartee, as constable of the county, to then and there arrest McGee."
It was of vital importance that the jury should be informed that appellant, in attempting the arrest or in the taking of the deceased into custody, was acting lawfully; that is to say, within the authority of law. Appellant had the right to have the jury instructed that he was not a trespasser in accepting the surrender from the surety and in attempting to make the arrest, and in effect that the deceased had no right to resist the arrest, so long as the arrest, as such, was being made in a proper manner. Sections 1250 and 1251, Code 1930, provide for the surrender of the principal by the surety on an appearance bond in a criminal case, and the concluding clause of section 1250 is that "bail may arrest their principal anywhere or authorize another to do so." These sections are, in substance, declaratory of the common law. In Taylor v. Taintor, 16 Wall. 366, 371, 21 L.Ed. 287, the Supreme Court of the United States said: "When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they chose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner." There is an interesting recent review of this subject in Fitzpatrick v. Williams (C.C.A.), 46 F.2d 40, reprinted in 73 A.L.R. 1365, with elaborate annotations, which disclose that it is not necessary to the operation of this rule that the principal shall have actually been imprisoned, and thence bailed. It is sufficient if his surety by his bond kept him from going to jail.
It was therefore error, and reversible error, to refuse to instruct the jury upon this important phase of this case and in accord with the stated rule of law on the subject. It is true that the requested instruction contained the recital that it was the duty of the constable to make the arrest, rather than what may be considered as the more correct recital that it was the lawful right of the constable then and there to do so. We do not now decide as an abstract proposition whether it is the general duty of a constable to accept, outside of his own district, the surrender of a principal by his bail; but we hold that inasmuch as the constable had that right, and had accompanied the bail upon an agreement so to do, it then became his duty to perform the service which he had the right and had expressly agreed, to do.
When the bail surrendered the principal to the constable, the latter informed the principal that he would have to go with the constable before the justice of the peace and make some new arrangement in the matter. The testimony shows that the principal then and there stated that he did not intend to go anywhere, and defied the officer to take him. The testimony further shows that the principal then went to the railroad depot and arranged to borrow the money which, as he supposed, would cover the fine and costs of the pending criminal charge, and which he proposed to tender the constable in discharge of his arrest. But the case had not been tried, and there had been no adjudication of the fine, if any there was to be, and, of course, there had been no final fixation of the costs. To meet this situation, appellant requested the following instruction, which was refused by the court: "The court instructs the jury for the defendant that Cartee, as constable of the county, was without authority of law to accept money from McGee in settlement of the criminal charge against McGee."
It was error, in the state of case here presented, to refuse that instruction. The attorney-general in his brief has made no attempt to defend or justify the error, and we must, therefore, assume that he could find none for it; and so far as we can see from this record there was no reason for the refusal. The instruction manifestly states a correct and a materially applicable point of law.
The court at the instance of the state gave an instruction that the jury might return either of three verdicts, that is, guilty of murder, guilty of manslaughter, or not guilty. Appellant thereupon requested the two following instructions upon the subject of compromise verdicts:
"The court charges the jury for the defendant that if they believe from the evidence or have a reasonable doubt thereof that the defendant was justifiable in taking the life of the deceased or if they believe from the evidence or have a reasonable doubt thereof that the defendant acted in the real or apparent self-defense then the court says to the jury positively, that they should not return a compromise verdict of manslaughter, but should return a straight verdict of not guilty, and that no juror should agree to a verdict of manslaughter as a compromise when such jury believes from the evidence or has a reasonable doubt thereof that the defendant was justifiable in taking the life of the deceased."
"The court charges the jury for the defendant that it is the sworn duty of every juror to vote on each and every ballot of the jury for an acquittal of the defendant, until and unless the mind of such jurors is convinced beyond all reasonable doubt and to a moral certainty from the evidence or the want of evidence, of the guilt of the defendant, and that a juror cannot under his oath as a juror compromise his honest convictions from the evidence, or for the want of evidence as to the guilt or innocence of the defendant, for the purpose of bringing in a verdict, but that under his oath and under the law that a juror should never surrender such conviction from or because of anything or reason whatsoever or for any purpose whatsoever as long as his conviction from the evidence or the want of evidence in the case."
There is no wide difference of opinion in the decisions that compromise verdicts, when they are actually by compromise, are not within the law. A defendant has the right to stand or fall upon his defense as made, and has a right to have the jury properly instructed against a compromise verdict. We had occasion recently to review this question in Speaks v. State, 136 So. 921, wherein we held that it is reversible error to refuse a correct instruction on that point. But the instructions requested by appellant were properly refused because they omitted the essential element that the conviction which the juror entertains and upon which he acts must be that which he retains "after consultation and deliberation with his fellow jurors." It is the benefit that is derived by the consultations and deliberations of the jurors among and with each other, bringing to bear upon the issues many intelligent minds and memories, which causes the law to retain so great a number as given as twelve on the jury; otherwise, it would be as well or even better, to have only five or three.
Appellant complains also of instruction No. 1 granted at the request of the state. This instruction is in the exact language of the first instruction quoted in the recent case of Smith v. State (Miss.), 137 So. 96, 98, and which the court there criticized; and although it was held that the instruction, if the only error, would not be sufficient to reverse, the court said at the same time that the instruction should not be given. Other errors are also assigned, but, if errors, they were not harmful, and we do not deem them as applied to this record of a sufficient importance to require discussion.
Reversed and remanded.