Boatwright v. State

1. Homicide. Evidence of threats admissible. In a prosecution for the murder of a constable, evidence that the defendant, a deserter from the army made threats several weeks before the homicide that he would kill any officer who attempted to arrest him, were admissible. 2. Timely Service op Copy op Indictment and Special Venire. Under Code 1906, section 1606 (Hemingway’s Code, section 1373), where a defendant accused of murder was served with a copy of the indictment and special venire on Saturday afternoon at four o’clock and the venire was returnable and the ease was called for trial on the following Monday morning at nine o’clock. This was a compliance with Code 1906, section 1481 (Hemingway’s Code, section 1239), requiring the service to be one entire day before the trial. 3. Arrest. Homicide. Right to arrest army deserters without warrant. Under Act of Congress, June 18, 1898, section 6 (U. S. Compt. St., section 2297), a constable had the right to arrest a deserter from the army without warrant arid in such case defendant’s act in killing such constable was not in resistance of an illegal arrest.

Appeal from the circuit court of Lauderdale county. Hon. B.. W. Heidelberg, Judge. Beeman Boatwright was convicted of murder and appeals. . The facts are fully stated in the opinion of the court. The copy of venire summoned and copy of indictment were served on appellant on Saturday afternoon at 4 o’clock and appellant put to trial over his objection on the following Monday. The statute in question is section 1481 of the Code of 1906, and is as follows: (1481) “Proceedings after indictment: in capital cases, copy of indictment and special venire served to be given;-any person indicted for a capital crime shall, if demanded by him, by motion in writing, before the completion of the drawing of the special venire have a copy of the indictment and a list of the special venire summoned for his trial, delivered to him or his counsel at least one entire day before said, trial,” etc. Appellant contends that the “one entire day” mentioned in the ■ statute means a judicial day — a day set for work and that it was never intended by the legislature to mean that Sunday should be considered the “one entire day.” In construing the statute let’s look to the intention and purpose .of same. This court speaking in the case of Friar v. State, 3 How. 422. as to the purpose of a similar statute, said: “This is certainly a right to which he is strictly entitled by the statute of this state, to enable him to prepare his defense and to make his challenge to the jurors.” The supreme court of Alabama in case of Eaisten v. ‘State, 59 So. 363, says as to purpose of like statute: “This plain object and .purpose of the statute in requiring a service' on the defendant of these copies is to afford him suitable and reasonable time in which to prepare his defense and get ready for trial. The service was not made on the defendant until the second day after the jury was drawn and the order entered, and then at a time when the defendant, was almost immediately thereafter put upon his trial without a fair and suitable opportunity to consider the jury lists and prepare his defense after the service of copies. This was not a compliance with either. The letter or spirit of the mandatory statute which the lawmakers have in their wisdom seen fit to enact for the benefit and protection of 'those charged with the commission of the highest crime known to onr law and which one charged with snch a crime has a right to rely npon the strict and fair compliance within the preparation of his defense when brought to the bar of justice.” Again in the same case the court quoted: “The provisions of the statutes requiring the service of á copy of the indictment and jury list in capital felonies are mandatory and a failure to comply with- such statutes striekly is fatal error, for the defendant is entitled as a matter of right to the protection afforded by them.” “Citing following cases from Alabama courts: Welch v. State, 1 Ala. App. 144, 56 S. W. 11; State v. McLendon, 1 Stewart 195; Parsons v. State, 22 Ala. 50; Morgan v. State, 48 Ala. 65; B.ain v. State, 70 Ala. 4; Brown v. State, 128 Ala. 12, 29 So. 200; Jackson v. State,' 50 So. 118. The case of Roberson v. State, 50 So. 345, from Alabama supreme court recognized the exclusion of Sunday in the computation of “one entire day” under the Alabama statute. The case of Nixon v. State reported in 2 Smedes and Marshall on page 497. is authority for the contention made by appellant 'to the effect that the words “one entire day” before trial mean one entire judicial day. The case of Dor rah v. Scate, reported in 44 Miss, at page- 789, is authority for proposition that if list of jury not served on defendant at proper time, that is good reason to postpone case until the accused had time allowed by law to examine and purge the panels is stated. I have been unable to find any authority directly in point on this question,- that is to say that passes on the direct question as to whether Sunday is to be reckoned or excluded, except the Alabama Case, supra. I submit -that Sunday should not be reckoned in the computation óf time even if you apply the computation statute for the reason that Sunday as given was the last day and not an intervening day and henee niider .the statute Sunday being, the last day, it should he excluded and under authority of. Nixon case the fractional parf of Saturday cannot he computed, so he was entitled to the entire day of .Monday before he was called upon to enter his trial. This court held that the word “day” as used in the constitution section 72 thereof means a whole day of twenty-four hours from twelve midnight of one night to twelve midnight of following night. Carter v. Henry, 87 Miss. 411, 39 So. 690; State v. Michel, 52 La. Am., 27 So. 565, citing 26 Am. & Eng.- Eney. Law, page 10; Haley v. Young, 134 Mass. 266, Anonymous, 2 Hill. 375; Thayer v. Felt, 4 Polk. 354; Hamming. Tourtellott, 10 Allen 494; Cunningham v. Mahan, 112 Mass. 59; Burrage v. State', 101 Miss. 598. ' The court permitted state to give in evidence declarations of witness Beall alleged to have been made five weeks before appellant got him a gun like the one he had and that if he had one like it no officers could arrest them. The entire testimony of this witness was incompetent under the authorities. See case of State v. Laque from supreme court of Louisiana reported in 6 So. 787. People v. Bazy, 67 Cal. 223, 7 Pac. 643; State v. Weaver, 57 Iowa, 730, 11 Pac. 675; .State v. Barefiled, 29 N. C. 299; Abernathy v. Comm., 101 Pac. 332; Ogletree v. State, 28 Ala., 693; Ford v. State, 71 Ala. 385; Carr v. State, 23 Neb. 749. If the conversation of the appellant with witness Beall was introduced for the purpose of showing threats by appellant then it was inadmissible. No threats made, none against deceased. Threats against policeman- did not include deceased. Shaw v. State, 30 So. 42. The first and second instructions granted the state — Record Yol. 2, page 392, are errors, I respectfully submit. These instructions told the jury in effect that Culpepper had a right to arrest the appellant without a warranty if they believed from the testimony that appellant was a deserter from the army.' These instructions 'ignore the proposition of law that the arrest must be legal. ■We submit that it was an attempt to make an unlawful arrest for the reason that it does hot. appear from the testimony that the officer was° armed with a warrant issued by some court of competent jurisdiction and in addition thereto, the appellant had not committed a felony; had committed no offense in the presence of an officer and known to an officer at the time; had committed no offense against the laws of the state of Mississippi. If arrest was illegal then the appellant had the right to resist same. The granting of the two above-mentioned instructions and the refusal of court to instruct the jury for appellant, that the arrest was illegal constitute reversible error. The court should have granted instruction 19 for the, appellant.- The same correctly stated the law and error was committed when same was refused, we respectfully submit. Same may be said of the refused instructions numbered 16, 17. 18, 20 and 21, requested by appellant. It has been a rule of universal acceptance that an officer has no legal right to place under arrest any man without the lawful authority so to do in the form of a warrant unless the party apprehended be charged with the commission of a felony or commits an offense against the law in the presence of the' officer. In this instance the appellant had committed no felony nor had he committed any offense known to the officer in his presence. Not having committed a felony; nor charged with commission of felony or the crime in the presence of officers, the deceased had no authority under the law to shoot appellant or attempt to place him under arrest even though the appellant at the time might have been a deserter from the ranks of the army. Under authority of Johnson v. Cummingham, 107 Miss. 140, an officer in attempting to arrest a person charged with a misdemeanor and causing death by firing gun at him -is liable in damages and the court in no uncertain terms condemns the practice; of officers in the promiscuous use of firearms when persons are only charged with misdemeanors. Here appellant had violated no law of the state of Mississippi ancl we submit the court was in error when it refused to charge that under the testimony the attempted arrest was illegal. So we submit' that in view of the errors complained of, so apparent from an examination of this record, that this appellant should not suffer the extreme penalty of the law under this judgment but that the same should be reversed and appellant awarded a new trial. Assuming(that the court’s attention was called to the defendant’s motion, and that the court ordered the defendant to be served with a copy and that the defendant was not served with a copy until Saturday afternoon at 4 o’clock and that the defendant was compelled to go to trial the following Monday we submit that the learned trial judge was eminently correct in overruling the motion to quash the venire. While learned counsel .for appellant cites a number of cases in support of his contention in this respect, we submit that not one of .them is directly in point, and we further submit that if all the courts of all the other states in the Union were to hold that Sunday was not to be computed, that even then there would be no merit in the contention of counsel, and that the decision of other courts declaring or establishing a method of computing time, could and would have no weight withothis court because our legislature in plain and unmistakable language has, in section 1696 of the Code of 1906, removed all doubt 'from the subject and established a rule for computing time in Mississippi. Recognizing the conflict in authorities and the doubts and uncertainties that will arise and the plausible arguments advanced to sustain the different methods or motions of computing time, it occurs to us that our legislature enacted section 1373 for the very purpose of obviating the question raised by counsel for appellant in this case. In other words, the legislature established a plain, simple and certain rule for computing time in all cases, and expressly provided. that when the last day falls on Sunday, it shall be excluded. “But in all other cases,' Sundays shall be reckoned in the computing of time.” Therefore, we confidently submit that Sunday was an intervening day and should be reckoned in the computing of time in • this case ■ because Monday was the last day or return day, and that, the defendant had a copy of the indictment and a list of the special venire delivered to him at least one entire day before said trial. We do not see how this motion to quash the special v.enire could be sustained without judie ally repealing section 1606 of the Code of 1906. The granting and refusing ■ of instructions. The only question involved in the alleged error of the court below in the granting and refusing of instructions is the right of Culpepper, a constable of. Mississippi, to arrest the appellant, a deserter 'of the United States Army. We think that the decision of the Missouri court in the case' of the State v. Pritchett, 219 Mo. 106, 119 S. W. 302, is sound and announces the correct principle and should be followed by this court. Conclusions: We submit that this evidence as believed by. the jury shows the deliberate murder by a deserter from the Army of one of the law officers of Mississippi; that notwithstanding how shocking the crime was and notwithstanding the color of the appellant or the color of the deceased, that just and charitable laws applied and enforced by learned, fair and impartial judge accompanied this appellant throughout his trial. This appellant had the benefit of every guarantee under our laws, and was tried fairly and impartially, and in our. opinion, we unhesitatingly say that we have never seen a record as free from error, and we respectfully submit that the case should be affirmed. As counsel relied chiefly on the ground that Sunday could not be counted in computing time within the meaning of the statute, which provides that a copy of the indictment and venire must be -served upon appellant or his counsel an entire day before trial, I shall address myself at this point more at length. ■ Counsel relies on the Alabama case in 59 So. 363. styled Haísten v. The State, the court will see upon close examination of this case that" it is entitled to little or no weight, in view of the facts of that case and in view of the Alabama statute. The Alabama statute provides that a copy of' the indictment and special venire must be served forthwith upon the defendant. The facts in this particular case shows that the defendant was arraigned on -Monday, February 19th and the special jury drawn and an order that the defendant be forthwith served with a copy of the special jury and indictment and that the defendant was not forthwith served with a copy of the special jury list and indictment, but was only served with it a few minutes before the defendant was put to trial. It is plain that under this statute and under the facts of this case that the statute was not complied with. This is not authority in the present case, where the statute of Mississippi is different and where the facts of this- cáse are so different. The truth about the business is that the sheriff served a copy of the special venire ob appellant as soon as service conld be bad on tbe veniremen. Tbe other cases with tbe exception of tbe Nixon case in appellant’s' brief are set ont in tbe Haisten case cited above. Appellant on this, point cites Nixon v. The State, reported in 2 Smedes & Marshall on page 497. Upon a close reading of tbe Nixon case, tbe conrt will readily see that it is not authority for tbe contention made by tbe appellant to tbe effect that' one entire day before tbe trial means one entire judicial day; that is to say, that Sunday does not count within tbe meaning of tbe statute. Tbe lower court in passing on appellant’s motion for a new trial as to this point, said: “The only ground that is urged by counsel at this time is tbe fact that a copy of tbe indictment and tbe venire drawn and summoned, was served on tbe defendant at four o’clock on Saturday, when tbe trial began on Monday, He cites in support of that contention tbe case of Nixon v. The State, Second Smedes & Marshall, in which tbe court made use of language like this: “ ‘The statute gives tbe accused a right to an examination of tbe indictment, “at least two whole days before tbe trial.” Service of tbe copy must have been made sometime on Thursday, and be would have been entitled to the days of Friday and Saturday for its examination with' tbe advice of counsel. Tbe statute intended two entire judicial days.’ ” . In passing on tbe case at bar it is necessary to see what was before tbe court at that time in order to determine what is meant by tbe use of tbe word, “judicial.” It says: “Two entire judicial days.” The question of whether tbe days tbe court referred to are days upon which judicial proceedings can be held was not before tbe court at this time. But tbe question there was whether or not it could couple a part of two days together so that it counted up forty-eight hours, and you would have two days. And tbe court held that you could not couple part of one day together with part of another day, and make an entire day simply when you had twenty-four continous hours. By that it is meant judicial days, and' used in judicial sense it means that an entire day begins at midnight and ends at midnight the next night. That is what the court meant when is said two entire “judicial’-’ days, in my opinion and in my judgment. If I am wrong about it, however, and if the court intends to say in that case that he was entitled to two entire judicial days, and they mean by judicial days those days upon .which judicial proceedings could he had, then the opinion would have no weight whatever because it would-be dictum. That proposition was not before the court, so as I see it, it leaves the proposition just as if there had been no decision at all. In that event a person would ordinarily use his common sense in deciding what was the reason for this statute-authorizing or requiring that a copy be served one entire day before the beginning of the trial, and the reasoning of counsel would apply in my judgment. But it-is also, true that there is no constitutional guarantee that the defendant be given a copy of the indictment and a copy of the venire 'at all. It is only by reason of the statute. The'legislature enacted a statute requiring that to be doné; the. legislature can limit the statute or they can entirely abolish it, if they see fit. It is a matter left entirely-to the action of the legislature, and as I said before, in passing on a motion for continuance in this case, that in my judgment section 1606, under the definition of words provides how it shall be computed, and settles the question here regardless of. what the reason of the legislature may have been in requiring this paper to be served one entire day. The legislature came along later and defined its reason. I have traced this - statute back, and it first appeared in the Code of 1880. At that time they were governed solely and alone by the common law as to what was meant by a given number of days required, or tbe given number of weeks or tbe given number of months, but tbe statute provides that Sunday shall always be reckoned in tbe computation of time unless Sunday happens to be tbe last day upon which the thing falls. This has to be done. So if it intervenes, or to use the exact words of the statute, “the last day falls on Sunday, it shall be excluded.” In other cases Sunday shall be reckoned in the computation of time. In other words when Sunday intervenes under the statute, it shall be reckoned. I think under the rule as laid down in the Nixon- Gase, they meán'by an entire day from 12 o’clock at night until 12’ o’clock the next night, and' not simply twenty-four continuous hours. I don’t think there can be any doubt but that Sunday is an intervening day. If it is an intervening day under the statute, section 1606 of the Code, it must be reckoned in the computation of time. The only other point worth while that was raised by appellant in his brief was the court’s refusal of certain instructions asked by appellant. If the court’s idea of one’s right to arrest a deserter is correct, then the action of the court as to this was correct. If not, the court was in error. The. case the lower court followed as to this is the ease of The State v. Pritchett, 219 Mo. 696, 119 S. W. 386, which holds that a constable may arrest a deserter without a warrant even when such deserter is out of the county or the state of which the constable is • an officer. Thát the Acts of June Í8, 1898, (30 U. S. Statutes at Large, 4840, chapter 469, section (6) gives any peace officer1 having authority to make arrests, the authority to arrest a deserter forthwith. The Pritchett case cited above, holds that a. constable arresting a desertey, is acting as agent of the United States Government and not as agent of the state. If the deserter is a felon, then the court could not do otherwise than to refuse the instructions complained of by appellant. This court will take judicial knowledge that the country was at war and that the punishment for desertion in time of war may he death. Then can it he said that desertion is only a misdemeanor. The statement of the proposition is its own refutation. The appellant has been given by the officers of the law and by the court a chance for his life, which was more than he gave Culpepper. Under the facts which stand out in this record as clear as a mountain on a landscape, this court will follow its past policy and uphold the verdict of the jury unless it appears that prejudicial error has occurred, and this is true even in those cases where this court, if acting as a juror, would have found different on the facts. Felder v. State., 67 So. 66; Jackson v. State, 63 So. 269; Brown v. State, 60 So. 726. In our humble opinion, this defendant had a fair and impartial trial by a fair and impartial jury and a just and righteous verdict has been reached, and for these reasons, the case should be affirmed.