Opinion
No. 33752.
November 6, 1939. Suggestion of Error Overruled January 2, 1940.
1. CRIMINAL LAW.
The rule in regard to the peremptory instruction is the same in criminal as in civil cases.
2. CRIMINAL LAW.
A peremptory instruction must be denied, if, taking all the evidence in behalf of the state as true, together with all the sound or reasonable inferences that may be drawn therefrom, there is enough to support conviction.
3. CRIMINAL LAW.
If a review of the evidence beyond that required for determining the propriety of denial of motion for peremptory instruction is sought, there must be a motion for new trial assigning as a ground that the verdict is against the weight of the evidence.
4. JUDGES.
There is no "affinity" between blood relations of husband and blood relations of wife, within constitutional provision prohibiting judge from presiding on trial of any cause where the parties or either of them shall be connected with him by "affinity" or "consanguinity" (Const. 1890, sec. 165).
5. JUDGES.
The "interest" which disqualifies a judge must be a pecuniary or property interest, or one affecting his individual rights (Const. 1890, sec. 165).
6. JUDGES.
Where stepmother of injured person was an aunt of the trial judge, the trial judge was not disqualified by reason of "affinity," under constitutional provision prohibiting any judge from presiding on the trial of any cause wherein the parties or either of them are connected with him by "affinity" or "consanguinity" (Const. 1890, sec. 165).
7. CRIMINAL LAW. Judges.
When a judge is not disqualified under the Constitution from presiding on trial of any cause, the propriety of his sitting or recusing himself is a question for his own decision, and is subject to review, if at all, only in case of manifest abuse of discretion (Const. 1890, sec. 165).
8. JUDGES.
The refusal of trial judge to recuse himself because stepmother of injured person was his aunt was not a manifest abuse of discretion.
APPEAL from the circuit court of Copiah county; HON. J.F. GUYNES, J.
M.S. McNeil, of Hazlehurst, for appellant.
The court erred in not recusing himself.
Section 165 of the Constitution of Mississippi provides as follows: "No judge of any court shall preside on the trial of any cause, where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties. Whenever any judge of the supreme court, or the judge or chancellor of any district in this state, shall, for any reason, be unable or disqualified to preside at any term of court, or in any case where the attorneys engaged therein shall not agree upon a member of the bar to preside in his place, the governor may commission another, or others, of law knowledge, to preside at such term or during such disability or disqualification in the place of the judge or judges so disqualified."
The first paragraph of Section 165 of the constitution is embodied in Section 736 of the Mississippi Code of 1930: "Judge not to sit when interested or related. The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties."
The principle that the judge of a court shall not preside on the trial of any cause where the parties are connected with him by affinity or consanguinity seems to be applied in criminal as well as civil cases.
33 C.J. 1007; Gill v. State, 61 Ala. 169.
In the instant case the aunt of the judge is the wife of the father of the prosecutrix. They are connected by affinity. If the court should hold that there was no connection between the prosecutrix and Judge Guynes then we insist that the trial judge is connected with the father of the prosecutrix by affinity, and he was a party to this prosecution.
Kelly v. Neely, Judge, etc., 12 Ark. 667; Y. M.V.R. Co. v. Kirk, 102 Miss. 41, 85 So. 710; Sinclair v. State, 161 Miss. 153, 132 So. 581; Coster v. State, 16 Ala. App. 1, 76 So. 475.
The court erred in refusing the peremptory instruction requested on behalf of the defendant.
While in a case of assault with intent to rape a defendant can be convicted upon the uncorroborated testimony of the prosecutrix, yet if the facts and circumstances in evidence discredit her testimony it is not sufficient to sustain a conviction.
The testimony of the prosecutrix, taken in connection with all the other facts, occurs to us as being unreasonable, unbelievable and unreliable to such an extent that it is wholly insufficient to sustain a conviction.
Monroe v. State, 71 Miss. 196.
A principle of law of universal application is that in a criminal case where the facts and circumstances in evidence are consistent with the defendant's guilt of a particular crime and at the same time consistent with the theory of his innocence of the same crime then there can be no conviction. But what we have in this case is a statement of facts consistent with the defendants' innocence of the particular crime and wholly inconsistent with his guilt.
Easterling v. State, 120 Miss. 404, 82 So. 306.
Accepting the entire statement of the prosecutrix in this case as true, it did not make out a case of assault with intent to rape.
Douglass v. State, 42 L.R.A. (N.S.) 524; Green v. State, 67 Miss. 356, 7 So. 326; Pew v. State, 172 Miss. 885, 161 So. 678; Byrd v. City of Hazlehurst, 101 Miss. 57; Newman v. People, 79 N.E. 80; 19 Am. Eng. Enc. of Law, p. 969, par. 12; Franey v. State, 71 N.E. 443; Woodson v. Commonwealth, 59 S.E. 1097, 107 Va. 895; 52 C.J. 1028, sec. 40; Spurlock v. State, 158 Miss. 280, 130 So. 155.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The trial court overruled the motion to recuse on the ground of relationship between the trial judge and the prosecutrix because the evidence showed that the prosetrix was merely the stepdaughter of the aunt of the trial judge. There was no relationship by either consanguinity or affinity.
Sec. 165, Constitution of 1890; Sec. 736, Code of 1930; Nimocks v. McGehee, 97 Miss. 321, 52 So. 626; Ex Parte Harris, 26 Fla. 77, 7 So. 1, 6 L.R.A. 713, 23 Am. St. Rep. 548; Chase v. Jennings, 38 Maine 44; O'Neil v. State, 47 Ga. 229; Hume v. Com. Bank, 78 Tenn. 1, 43 Am. Rep. 290; Blodget v. Brimsmaid, 9 Vt. 27; Doyle v. Commonwealth, 100 Va. 808, 40 S.E. 925; Chinn v. State, 47 Ohio St. 575, 26 N.E. 986, 11 L.R.A. 630; Kelly v. Neely (Ark.), 56 Am. Dec. 288, 293; Brotherhood of Locomotive Engineers v. Hogan, 5 F. Supp. 598.
The motion to recuse on the ground of interest of the trial judge was properly overruled.
Sec. 793, Code of 1930.
The evidence was sufficient to convict.
Easterling v. State, 120 Miss. 404, 82 So. 306.
W.S. Henley, of Hazlehurst, for the State.
Judge Guynes was not disqualified. Under the laws of the State of Mississippi (Section 165 of the Constitution and Section 736, Code of 1930), a judge is only disqualified when related to the parties by affinity or consanguinity, or interested in the suit. In the present case, Judge Guynes' aunt married Miss Thomas' father. In other words, the judge's aunt is the stepmother of the injured party. At the time Miss Thomas was born, clearly she was in no wise related to Judge Guynes either by consanguinity or infinity. Does the fact that her father subsequently married the judge's aunt make her related to the judge? There is no contention that Miss Thomas is related by consanguinity to the judge. When the judge's aunt married her father this connected her father with the judge's family by affinity. It is self evident that if every time two people married all of each of their relatives became connected with the other relatives by affinity that everyone would soon be related to each other by affinity in numerous ways, and it would be impossible to keep track of them.
Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676.
If the judge had been a partisan in this proceeding where heinous crime had been attempted against a very prominent young lady in the county, it would have been natural to have expected the maximum sentence. On the contrary, the judge gave the defendant a sentence for only five years, and he could have given him ten years. It is submitted that the conduct of the judge has been extremely fair and impartial as reflected by the record in the case.
We concede to counsel for the appellant the right to raise every conceivable point in favor of his client, but we respectfully and deferentially submit that he has unduly criticized the judge in this matter.
Ferguson v. Brown, 75 Miss. 212, 21 So. 603.
For a judge to be disqualified because he suggests that a matter be referred to a grand jury or because he feels that a criminal should be brought to justice through due processes of law would very likely disqualify every judge in the State of Mississippi.
The question of a judge's interest has been defined in the case of Cashin v. Murphy, 138 Miss. 853, 103 So. 787, to be a pecuniary interest and not a prejudiced or biased interest, the judge being conclusively presumed to be fair and impartial.
It is submitted that the evidence was ample to establish beyond a reasonable doubt the defendant's intention to accomplish his purpose by means of force. The defendant was ably represented by one of the very best criminal lawyers in the south. He was given every conceivable charge to the jury in his favor, and then the jury without hesitation convicted him, and we submit that their verdict should be affirmed.
Argued orally by M.S. McNeil, for appellant, and by W.S. Henley and W.D. Conn, Jr., for the State.
The assignments are argued by appellant and the first is that he should have been granted the peremptory instruction requested by him.
The rule in regard to the peremptory instruction is the same in criminal as in civil cases, Justice v. State, 170 Miss. 96, 154 So. 265, and that rule, to restate it, is that taking all the evidence in behalf of the state as true, together with all the sound or reasonable inferences that may be drawn therefrom, if there be enough to support a verdict of conviction, the peremptory must be denied. If beyond this the court is to be called on to review the facts there must be a motion for a new trial assigning as a ground that the verdict is against the weight of the evidence. See Justice v. State, supra. Under the rule as stated the peremptory was properly denied in this case.
The other assignment is in regard to the refusal of the trial judge to recuse himself. The record shows that the stepmother of the injured person is an aunt of the trial judge.
The Constitution of 1890 lays down in appropriate sections what are necessary as qualifications of the judges of the superior courts, and, in Sec. 165, proceeds to specify what it is that will disqualify, and that section is as follows: "No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties."
It is not contended that there is any connection between the judge and the injured person by consanguinity, as of course there was not. As to affinity there is a connection between the judge and the father of the injured person, since the father is the husband of the judge's aunt, but this does not extend to the stepdaughter of the aunt, because there is no affinity between the blood relations of the husband and the blood relations of the wife. Ex parte Harris, 26 Fla. 77, 7 So. 1, 6 L.R.A. 713, 23 Am. St. Rep. 548.
It is not suggested, and it could hardly be suggested in a criminal case, that the judge had any pecuniary interest and it has been held that the interest which disqualifies a judge under the constitution must be a pecuniary or property interest, or one affecting his individual rights. Ferguson v. Brown, 75 Miss. 214, 227, 21 So. 603; Cashin v. Murphy, 138 Miss. 853, 866, 103 So. 787.
The trial judge was not disqualified under the quoted constitutional section; and when a judge is not disqualified thereunder the propriety of his sitting or recusing himself is a question to be decided by him, and if subject to review at all, would be so only in case of a manifest abuse of discretion. No such abuse is here disclosed. Cashin v. Murphy, supra.
Affirmed.