Turbeville v. State

1. Forgery. Book of accounts. Assessment-roll. A city assessment-roll is a book of accounts, within sect. 2582 of the Code of 1871, which makes it forgery to fraudulently alter an entry in any book, of accounts kept in a public office. 2. Criminal Law. Trial. Absence of judge. Argument. The circuit judge’s absence from the bench during the argument of a felony case is not such an abandonment of the court and conduct of the trial as that the judgment should be reversed, if he remains in an adjoining room, within hearing, with a lawyer on the bench to call him, if needed. 3. Same. Trial. Circuit judge's duties., Exceptions. Waiver. The duties of circuit judges in conducting trials, the necessity for their continual presence, their authority to control the arguments, and the time and manner of objecting to their absence, discussed; and the conclusion reached, that in prosecutions for felonies any absence of the judge, which amounts to a relinquishment of control of the proceedings, will vitiate the verdict, and his presence during the arguments of counsel is as essential as at any other time.

ERROR to the Circuit Court of Yazoo County. Hon. S. S. Calhoon, Judge. The nature of the case and the effect of the evidence are stated in the opinion of the court. During, the argument by counsel in the lower court, the judge left the bench, to be occupied by a member of the bar, whom he instructed to call him if his presence should be needed. 'While the district attorney was making his closing argument to 'the jury, the counsel for the accused objected that he had appealed to the race prejudices of the colored jurors in order to secure the conviction of the defendant. The judge was recalled to the bench, to settle the objection raised. The judge had not heard the language to which the objection referred. The district attorney denied that he had appealed to the race prejudices of any of the jurors, but stated that he had argued that the trial should be impartial, without reference to who was accused. The judge then stated, in the presence of the jury, that any appeal to race prejudices was, of course, improper, but it was fair argument to say that men' of every station and color stood alike before juries, and that discriminations should not be made in favor of men simply because they were respectable. All the other material facts of the case are stated in the opinion of the court. 1. The assessment-roll is not a book of accounts, within the meaning of sect. 2582 of the Code of 1871. To hold that it is, will do violence to the legislative intent, and give a forced interpretation to plain language. Throughout our statutes and State reports, and the charters of Yazoo City and other towns, the term “assessment-roll” is used to designate one thing only, while the words “ books of accounts ” are used to designate a different thing. The assessment-roll has none of the elements of an account-book. Criminal statutes must be strictly construed; and the courts cannot, by adding words, supply legislative omissions. That it ought to be an offence to forge an assessment-roll, does not make it so. The plaintiff in error was not indicted for altering a public record, and an indictment for one crime cannot be sustained by proof of another. The indictment must follow the statute, and the evidence the indictment. Harrington v. The /State, 54 Miss. 490. . 2. It was error for the judge to leave the bench during the trial of the cause. The judge’s absence destroyed the court. Justice cannot be “judicially administered” without the judge; and a prisoner on trial for felony is incapable of consenting to such an irregularity. Meredith v. The People, 84 Ill. 479 ; Hoagland v. Greed, 81 Ill. 506 ; Bishop v. JTelson, 83 Ill. 495 ; Oobb v. The People, 84 Ill. 511; Van Slylce v. Trempealeau Ins. Go., 39 Wis. 390; Code 1871, sects. 531, 536. . The Constitution of the United States, and of this State, give the accused the right to counsel, the most laborious and interesting part of whose duties it is to address the jury. This right is regulated by sect. 2806 of the Code of 1871. The argument is as much a part of the trial as the introduction of the evidence or the return of the verdict; and if a member of the bar can preside at the argument, he can conduct the whole trial. 3. The casa should be reversed because of the district attorney’s appeal to the race prejudices of the colored jurors. The State v. Smith, 75 N. C. 306 ; Devriss v. Phillips, 63 N. C. 53; Ferguson v. The State, 49 Ind. 33; Fletcher v. The State, 49 Ind. 124. An attorney should be confined, in his address to the jury, to the facts developed .by the evidence; and this rule should be rigidly enforced against the district attorney, who, in closing the argument, may raise in the juror’s minds such a prejudice against the prisoner as practically to deny him the fair trial to which he is entitled. filed a brief, contending that the judge’s inability to decide whether the district attorney appealed to the race prejudice of jurors was a conclusive reason for reversal, because it was owing to the judge’s absence that he could not know what transpired in the argument of counsel; and that a prisoner on trial for felony had a right to the protection of the judge’s presence, without which an overzealous or unscrupulous prosecution might fatally prejudice the defendant’s cause. Counsel also argued elaborately the points in the preceding brief, citing the following authorities : On the first point, Bouv. L. Die., tit. “Book;” 2 Whart. Cr. Law, 1444, a, b; Virden v. Bowers, 55 Miss. 1; Cooley on Tax. 289 ; Harrington v. The State, 54 Miss. 490. On the second point, Meredith v. The People, 84 Ill. 479; 17 Am. Law Rep. 344; Const. Miss., Bill of Bights, sects. 7,12. On the third point, The State v. Smith, 75 N. C. 306 ; Ferguson v. The State, 49 Ind. 33. 1. The assessment-roll is a book of accounts, within the meaning of the statute. It has all the elements of an account-book. In it is kept an account between the city and each property-holder, showing the amount due from each, and the amount which he has paid thereon. That the book has some features not common to all account-books cannot affect the question. It contains the separate account of each» tax-payer, with the taxes due representing the debit, and the taxes paid representing the credit side thereof; and this makes it a book of accounts. 2. The conduct of the circuit judge was not such as to destroy the court. He did not relinquish control of the trial. If the judge had remained in the court-room, clearly there would have been no error; yet, in this case, while not in the room, he was much nearer the bench than he would have been hi many parts of the room. He was not bound to listen to every word of the district attorney’s speech, and might have failed to hear him even if he had been. present. It cannot be maintained that a case shall be reversed on the sole ground that the judge is unable to decide a controversy between counsel. '3. The statement of the prisoner’s counsel, that the district attorney had appealed to the race prejudices of the jurors, was denied by that officer ; and the circuit judge, not having heard the remark, could not decide between them. It is not, therefore, rnade to appear that any thing objectionable was said by the State’s attorney, and this court cannot interfere. To do so would be to assume that the district attorney was mistaken, as to which the court is uninformed. Nothing said, however, would have injured the defendant in the least, since upon the evidence the verdict could not possibly have been different; and all danger of injury was removed by the judge’s remarks on returning to the bench.