Hightower v. State , 58 Miss. 636 ( 1881 )

Campbell, J.,

delivered the opinion of the court.

This case may be considered as if Mr. Frankel had not testified at all as to whether or not the committing magistrate reduced to writing the alleged confession of the accused. Then it stands thus : The law required the officer to reduce to writing the confession of the accused, and to certify and send up .the record made to the Circuit Court, and, in the absence of proof, the presumption is that the officer did his duty; and as the court, in the trial of this case, sent one of its officers to search for this record, who reported to the court, under oath, that it could not be found, it was proper to admit parol evidence of the confession or admission of the accused before the examining court. Presumedly, the record made by the examining magistrate was in the possession of the Circuit Court. If it caused search to be made for it among its records, and it could not be found, it was competent to prove bj? parol the confession, unless it was made to appear that the record of it was in existence somewhere else. There was no such suggestion. The evidence of the confession of the accused was objected to solely on the ground of the absence of the writing-made by the justice of the peace who examined the charge against him. There was no hint in the court below, so far as the bill of exceptions shows, that the confession was not voluntary. It must be assumed to have been such, and that it was so made to appear to the Circuit Court. Its action must be held to have been correct, except wherein it is distinctly shown not to have been. He who complains of error in the action of the court below must point it out. He must be able to “ put his finger on it.” Otherwise it will be presumed to have been correct.

Judgment affirmed.