Opinion
No. 47774.
March 11, 1974.
Appeal from Circuit Court, Jackson County, Merle F. Palmer, J.
Gerald A. Dickerson, Emily V. Baker, Pascagoula, for appellant.
A.F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.
Andrew Thomas, Jr. was tried in the Circuit Court of Jackson County on a charge of burglary. He was convicted and sentenced to serve a term of 5 years in the penitentiary. He appeals.
At 2:30 in the morning, patrolling officers noticed that the door of the Bar 16 Cafe was ajar. Entering the cafe to investigate, the officers found Thomas kneeling by the jukebox with a tire tool in his right hand and a knife in his left. It was discovered that the cafe door had been "jimmied" with a screwdriver or some similar instrument. Thomas was arrested and was found to have a pair of pliers in his pocket. On further investigation, the officers found one Moses Frederick, referred to in the record as "Freddie," a teenager, hiding in the icebox.
Thomas told the officers that he had entered to investigate and had "scared" two people out the back door. At that time he did not mention Freddie. However, testifying as a witness in his own behalf at his trial, he stated that when he had entered he had found Freddie already in the cafe.
While confined in jail awaiting trial, Thomas and Freddie had several conversations with each other, and when the latter was moved "upstairs" Thomas wrote him the following note:
"Freddie listean, is you going to tell my lawyer what i told you if you do i can get out, you no i am going to help you. And also you no i havent lied to you so far. You see if you tell them they still cant do no more to you. the only thing the can charge you with is the Police Badge. i will do all i can to help you (and that is a promise)"
After identification of the note by Thomas on cross-examination, it was introduced by the State, with the consent of the defendant. On redirect examination, Thomas was asked by his counsel to "explain what did you mean?" (by the note). An objection was interposed at this point and was sustained by the court.
The action of the trial court in sustaining this objection is assigned and argued as having constituted prejudicial error, requiring reversal.
This might have presented a serious question but for the fact that elsewhere in the record, without objection, Thomas explained at length and in detail what it was that he had wanted Freddie to do. He said that he had wanted Freddie to support him in his statement that he had not participated with Freddie in breaking and entering the cafe.
If it was error on the part of the trial court to sustain the objection to the specific question referred to, any prejudicial effect which may have resulted was removed by this testimony of Thomas, which made it clear that he desired Freddie to say that he, Thomas, had nothing to do with the burglary.
The only other assignment of error is that the verdict was against the overwhelming weight of the evidence. However, the evidence was ample to support the conviction and, no prejudicial error having occurred in the course of the trial, the conviction appealed from must be affirmed.
Affirmed.
RODGERS, P.J., and PATTERSON, INZER and BROOM, JJ., concur.
I am of the opinion that the court was without authority to require the Secretary of the Senate to expunge the Governor's veto from the records of the Mississippi State Senate; however, this would not bar a final determination of the issue here involved.
The majority opinion holds that the trial court erred in not sustaining the demurrer of the Secretary of the Senate. The reason assigned is that the Secretary of the Senate did not have a ministerial duty to return the senate bill with the Governor's veto message to the Secretary of State, but the decision involved discretion.
The determination of whether or not the Governor's veto message was returned within the time required by Section 72 of the Mississippi Constitution of 1890 is not a question for determination by the Secretary of the Senate. Statutory law provides for publication by the Secretary of State when a legislative bill becomes law. The bill in question being a senate bill could be published only if the Secretary of the Senate delivered the bill to the Secretary of State. While neither the Secretary of the Senate nor the Secretary of State have any official functions to perform insofar as the basic question of whether the bill became law or not, they do have official duties when a bill does become law. But for the reasons already stated, these functions are ministerial. If the bill in question became law the petitioners are entitled to its publication so that there will be an official record of a law that governs their daily transactions; therefore, in my opinion, the petitioners in seeking the writ of mandamus in this case have stated a cause of action. The judgment they seek is not a mere advisory opinion.
The majority also held that the demurrer of the Secretary of State should have been sustained because he was not afforded the opportunity to perform the duty which was sought to be enforced by mandamus. This is the rule in this state as correctly stated in the majority opinion, but the rule is not without exception. A recognized exception is that it is permissible to include in one writ two or more public officials who are required to act successively to accomplish the results sought.
This precise question was before the Supreme Court of the United States in Board of County Commissioners v. United States ex rel. Moulton, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698 (1884) where the court stated:
The relator is entitled to an effective writ, and he can have it only on the terms of joining in its commands all those whose co-operation is by law required, even though it be by separate and successive steps, in the performance of those official duties, which is necessary to secure to him his legal right. Otherwise the whole proceeding is liable to be rendered nugatory and abortive. For the levy and collection of a tax is not only an entire thing, although accomplished by successive steps and by separate officials, but it is a continuous transaction, each one taking it up where his predecessor left it; and if the relator was compelled to obtain a separate mandamus against each person charged with the performance of a single service, the very delay and break in the continuity of the process might be, by the terms of the law itself, a sufficient answer to each succeeding writ; and if it were not, it would prolong the proceeding to such indefinite length as to deprive the writ of the very character of a remedy. . . . (5 S.Ct. at 111).
The opinion also discussed the question of whether a mandamus should issue until an officer has refused to do the act sought by mandamus. The court stated:
The same point had been previously raised and decided in The King v. The Mayor of Abingdon, 1 Ld.Raym. 559, by Chief Justice Holt, who said: "There have been a hundred writs directed to the mayor and aldermen of London in cases of acts to be done by them separately." The report continues: "The second exception to the writ was to that part of the writ which commanded the mayor to swear Sellwood and Spinnage, that they sued this too soon; for a mandamus ought not to go until the officer has refused to do the act and his duty; or, at least, that there was some person who had right to have the thing done to them, which was not in this case, because they were not yet elected; that this was to sue a mandamus quio timet, and, like the case of an original bearing teste, before the cause of action accrued. But per Holt, C.J., it will be well enough in this case, because they are acts depending the one upon the other; first, they ought to elect him, and then the mayor ought to swear him. And the writ was held good, and the return disallowed, and a peremptory mandamus was granted." (5 S.Ct. at 112).
The question of several distinct ministerial duties to be performed by different persons as a means to an end was also discussed in State ex rel. Gillespie v. Rhodes, 116 Fla. 733, 156 So. 701 (1934) in which the court stated:
Where several distinct ministerial duties are to be performed by different persons or boards as a means to an end, so as to preserve the integrity and unity of the performance as an entire duty, all such persons may be joined in one writ of mandamus. State ex rel. Knott v. Haskell, 72 Fla. 176, 244, 72 So. 651. A single writ of mandamus is all that is necessary to enforce the assessment and collection of a tax, even though it be by separate and successive steps, which are necessary to secure the end. Board of Com'rs of Labette County v. United States, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698 (156 So. at 701).
If we fail to decide this case on the merits it would leave the status of Senate Bill 1535 uncertain until another suit could be filed, tried, and determined on appeal. We have before us all the facts and argument necessary for a decision. There is no question but that there is a dispute of significant proportions as to whether Senate Bill 1535 became the law of this state. The judicial power is vested by the Constitution in the courts and the essence of judicial duty is to resolve controversies and I am of the opinion that this controversy ought to be resolved in the present suit.
GILLESPIE, C.J., and ROBERTSON, J., join in this dissent.